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Television Courtroom Broadcasting:

A Normative Analysis of the Legal-Policy

Issues, Challenges and Opportunities

Regarding TCB Effects-Research

Paul Lambert

University of Dublin

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Television Courtroom Broadcasting:

A Normative Analysis of the Legal-Policy Issues, Challenges and

Opportunities Regarding TCB Effects-Research

by

Paul Lambert

Degree:

PhD

Year:

2015

Supervisors: Dr Eoin O’Dell

Hon Mr Justice Gerard Hogan

Institution:

Law School, Trinity College, Dublin

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Declaration

A) This thesis has not been submitted as an exercise for a degree at this or another University, B) The thesis is my own work

Signed: _______________________ Paul Lambert

I agree that the Library may lend or copy the thesis upon request as follows. This limited permission is limited to lending and single copies made for non-commercial, academic or study purposes only and subject to full acknowledgement. All rights reserved including copyright and moral rights.

Signed: _______________________ Paul Lambert

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COURTROOM BROADCASTING ABBREVIATIONS

TCB: Television courtroom broadcasting CB: Courtroom broadcasting generally RCB: Radio courtroom broadcasting MCB: Movie theatre courtroom broadcasting CCB: Closed circuit courtroom broadcasting

RYCB: The relay of CB footage other than through a pushed public television broadcast ECB: The distribution and use of CB footage on CD, DVD or other electronic media recording or storage devices (recording media CB);

PCB: Still photography of courtroom proceedings

TCBABBREVIATIONS

iTCB: Internet television courtroom broadcasting jTCB: Juryroom TCB

aTCB: TCB for archival or record keeping purposes (record keeping TCB) rTCB: Reality entertainment TCB (eg Judge Judy)

nTCB: News TCB dTCB: Documentary TCB TCB TV: dedicated TCB channel TCB-P: dedicated TCB programme programme

segment TCB: Dedicated TCB part of a programme nTCB: News TCB

G2G-TCB: full length broadcasts of TCB cases or gavel to gavel TCB lTCB: live TCB

n-TCB: non-live TCB

P- TCB: pictures and no in-court sound TCB P+ TCB: pictures and in-court sound recordings TCB ip TCB: interviews or statements from parties ICs TCB: interviews with correspondents ie TCB: interviews with experts apTCB: appeal court or appeal TCB tTCB: trial court TCB

crTCB: criminal court TCB cvTCB: civil court TCB

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SUMMARY/ABSTRACT

There has been a lot of popular opinion based discussion in relation to TCB issues. Frequently the arguments propose that there will/will not be particular effects. Yet TCB needs a ‘proper, evidence-based assessment’ according to Lord Thomas, the Lord Chief Justice of England and Wales,1 to move beyond popular unsubstantiated opinions. The thesis focuses on TCB research, effects issues, the adequacy of available effects-research and makes suggestions for normative TCB effects-effects-research. The thesis seeks to contribute to determining what counts as relevant ‘evidence’ for this purpose, and also how researchers should go about seeking it. For example, the TCB distraction-effects arguments, namely, the concern that TCB cameras and or TCB cameras plus camera operators, will distract some of the courtroom participants.2 This concern was highlighted by the US Supreme Court.3 The thesis will suggest that eye-tracking research can advance our level of knowledge and assessment of the TCB distraction-effects. Advancing on this, the thesis will undertake an actual demonstration of eye-tracking in a real courtroom.4 The assessment, proposals and in-court proof-of-concept demonstration of TCB related eye-tracking is new. This can also lead to wider TCB effects research. The thesis will refer to the debate and some of the issues arising in this jurisdiction.5 The

1 F Gibb, ‘Britain Rethinks Cameras in Court’ Times (London, 16 May 2014).

2 Therefore, such issues as courtroom broadcasting, TCB generally and the legal arguments

for and against are beyond the scope of this work.

3 Estes v Texas 381 US [1964] 532; Chandler v Florida 449 US [1981] 560; and

Hollingsworth v Perry 558 US [2010] < www.supremecourt.gov/opinions/09pdf/09A648.pdf > accessed 19 January 2014.

4 Advancing to further studies can be in mock courtrooms, non-live courtrooms and like

scenarios. It is not presently suggested include live courtrooms.

5 While there is no TCB in Ireland the intention was not only to repeat and expand the earlier

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case of a lay litigant applying to have his defamation case broadcast via TCB will be considered.6 In addition, the thesis will replicate judicial TCB attitudinal research in Ireland. The thesis will also undertake the first representative public TCB attitudes survey in Ireland. It will be a beneficial baseline. In addition, the thesis undertakes an international survey in relation to the prevalence of TCB in over thirty jurisdictions.

The thesis is relevant and important because the issue of TCB is ever more prominent in the legal-media landscape. Following the iconic Simpson (criminal) TCB case, there is a regular stream of TCB celebrity and notoriety type cases, including the recent Pistorius7 case in South Africa. Courts and legal-policymakers in various countries (and across court levels) are under increasing pressure to accommodate some form of TCB in their courtrooms. This is evident in the US, Canada, Australia, the UK and elsewhere. In dealing with such considerations (whether on a general planned legal-policy level or in the pressure cooker of an individual instant case) it might have been assumed that there would be a ready and reliable legal-empirical research literature available to assist courts when they have to consider these important issues. Courts and judges come to consider these issues from a legal-policy perspective in addition to individual cases where there may be applications to permit TCB.8 Consideration is also given by the thesis to the distinction between planned and instant access issues. Arguably less considered TCB may occur in an instant case where a judge may be asked to permit TCB in that case and unilaterally decides to permit some form of TCB. In such instances, such as the Pistorius9 case and Irish case,10 the individual judge may have less opportunity to consider all of the issues, particularly in terms of the available TCB research, the effects issues, how to minimise particular adverse effects and how to maximise particular positive effects, etc. The pressures on the individual judge may be most enhanced in isolated TCB access applications.

valuable in terms of establishing baselines and parameters for any future research in Ireland.

6 J McCarthy, ‘Teacher Argues For Libel Court Case to be Televised’ Sunday Times (Dublin,

13 July 2014). Judge Keane will hear the application on 24 November 2014.

7 State v Oscar Pistorius Pretoria, South Africa, Case No C13/255/13.

8 There may also be appeals as a consequence of what TCB may have occurred – or what

TCB may be about to occur. An example of the later individual access applications is soon to occur in Ireland. See J McCarthy, ‘Teacher Argues For Libel Court Case to be Televised’ Sunday Times (Dublin, 13 July 2014). Judge Keane will hear the application on 24 November 2014. The Pistorius case is another example, State v Oscar Pistorius Pretoria, South Africa, Case No C13/255/13.

9 ibid.

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The thesis will review and analyse the available TCB effects-research. It will find that there is no large body of properly considered and reliable legal-empirical TCB research on the effects issues, and not one sufficient to ensure that today’s judges in dealing with TCB can arrive at assured answers and decisions as to particular TCB effect issues. In considering the limited amount of research to date, the thesis will consider and identify many problems with such research, in particular the overreliance on self-reports and opinions which are open to bias and a lack of independent verification. The thesis will suggest the benefit of undertaking more contemporary and normative legal-empirical research of the TCB effect issues. Various models will also be suggested. The thesis will examine the importance of establishing the baselines and parameters and why this should be undertaken over an extended period before TCB cameras are introduced into courtrooms.11

One of the central concerns in relation to TCB is that TCB cameras or TCB camera plus operators will distract the various participants in court who are required as part of the judicial courtroom process. This includes witnesses, the jury, judges, lawyers, parties and court staff. This is the concern in relation to TCB distraction-effects.12 The research effort of the distraction (and other) effects of TCB is problematic and underdeveloped, and by implication the legal, legal-policy and discussion in the popular arguments.13 A body of normative legal-empirical TCB research, it will be suggested, can seek to address these issues.

The many and varied problems with the existing TCB effects-research will be examined, some for the first time. The issues of the location of the TCB cameras and the location of the courtroom participants, visual cones-of-vision and their importance for effects-research will be identified by the thesis. The thesis will suggest that we need to start recording more TCB effect relevant data than is generally recorded to date. Without such data, it is difficult to be assured in relation to particular conclusions of effects.

11 The thesis research ensures that Ireland has started some of the baseline parameter research

process which has been missed by other jurisdictions.

12 While it is not expressly stated in the literature reviewed, there is some recognition that

different concerns arise. Essentially many of the effects concerns are graduated concerns relative to the individual categories of courtroom participants. This should be more expressly developed in future normative TCB effects-research.

13 The research effort and results fall far short of what we should expect. Only by (critically)

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The thesis will explore the common theme within the three US Supreme Court television camera cases,14 and which remains relevant to normative TCB considerations in the US and elsewhere. Neither the US Supreme Court, nor commentators, have recognised that as broadcasting technology may change, so too can the research tools available. While media technology has changed, the normative research models and legal-empirical research technology has also changed. Today, we have more TCB research technology, research tools and comparative research knowledge than at any time previously. The optimum normative TCB in-court distraction-effects research capabilities today are greater than relying on mere opinion. It is important to identify, as the thesis does, that much of the so-called prior research rests on mere opinion. We are better able to research distraction-effects today than we were in 1965.15 The thesis suggests that eye-tracking can assist in conducting research of distraction-effects of TCB, and in such way as the US Supreme Court may not have even considered possible. We can now record and see where the individual (mock) courtroom participants are looking. We can begin to see if they are distracted by the TCB cameras or the TCB camera plus camera operator in the courtroom. We can also apply eye-tracking research to different types of TCB and TCB cameras, from small to large, from fixed to moving, etc. The thesis suggests that these graduated-effects need to be considered. L Mulcahy seeks to ‘develop the limited literature on court’16 architecture and design. The thesis seeks to develop the limited TCB distraction-effects literature, consideration of the concerns and how we may go about better normative legal-empirical research to overcome the problems identified with the previous research (in particular relying on mere opinion). Eye-tracking can be used for conducting in-court distraction-effects research. There are many advantages of eye-tracking, including being able to track distraction effectively and being able to record the results. The thesis will undertake a proof-of-concept demonstration of eye-tracking technology for in-court distraction-effects caused by TCB. Distraction, visual cone-of-vision, participant and observer location data, and graduated-effects need to be incorporated into TCB distraction-effects research, it will be suggested.17

14 This is the US Supreme Court’s challenge that more legal-empirical research be undertaken

to examine the effects implications of TCB. While identifying this challenge for the first time is beneficial, the author goes further. Issues that the US Supreme Court has not yet identified as research concerns are also dealt with by the thesis.

15 Just because certain TCB now involves miniaturised cameras, does not mean that

distraction cannot occur. Indeed, even without actual distraction-effects, there may still be other inhibiting effects, particularly on the non-professional persons whom may be in court.

16 L Mulcahy, ‘Architects of Justice: the Politics of Courtroom Design’ (2007) 16 Social &

Legal Studies 383, 385.

17 Camera-perspective-bias research offers research avenues for TCB research in and of itself,

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Educational TCB issues will also be explored. No form of TCB has been proven to educate. There is very little TCB education-effects research. No validation and replication occurs. Baseline issues are ignored. What is meant by ‘education’ is not properly addressed. The previous studies do not undertake similar research or methodologies.18 The pressures and changes in the Estes19 and Pistorius20 cases indicate a need for more considered TCB policy and less instant ad hoc ‘pressure cooker’ TCB decision making.

There are potentially many forms of TCB.21 Researching the different TCB form issues may further assist courts and legal-policymakers in their important considerations and indeed deliberations. This has added importance given the potential for iTCB to potentially be more educational than (some) other TCB forms. The thesis reveals the importance of identifying particular forms. Some forms may be potentially more educational than others. One cannot say (television) courtroom broadcasting per se is educational, without identifying which form of TCB one is discussing. These various issues will be explored in the thesis.

It will be suggested that perhaps the area of iTCB will lead to some of the most important out-of-court effects-research in future. The nuances of the similarities and differences between existing TCB forms and the new iTCB form call for particular research. The thesis suggests that there may be much to commend iTCB arguments to courts and legal-policymakers over current arguments for TCB forms.22

Wider comparable research will be suggested as benefiting TCB effects-research, such as media and communications, genres and formats, legal-psychology, camera-perspective-bias, other eye-tracking distraction research and baseline research. The issues of direct central visual cone-of-vision distraction; peripheral visual cone-of-vision distraction; and

effects litigation and forms of court mandated health advertisements. An important legal article in the Harvard Law Review also undertake empirical inter-disciplinary research.

18 The limited research available suggests that ‘confidence’ did not increase as a result of TCB

(W Petkanas); that there was no ‘change in ‘attitude’ (AR Paddon); no educational-effect nor any enhanced knowledge about the court procedures (K Netteburg); and no enhanced usage of TCB (J Ossinger). (See below).

19 Estes v Texas 381 US [1964] 532.

20 State v Oscar Pistorius Pretoria, South Africa, Case No C13/255/13.

21 See Abbreviations. Consider, for example, streamed internet TCB (iTCB), entertainment

reality TCB (rTCB), etc.

22 One can envisage that in future certain data protection issues may have to be considered in

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indirect visual cone-of-vision distraction of courtroom participants are all suggested as needing to be considered in further TCB effects-research.

The thesis will advance the international discussion and policy considerations of TCB, by identifying the US Supreme Court TCB effects-research challenge. It will recommend that the sophistication of research needs to develop. Normative TCB research needs to better define and identify which TCB form, and sub-form, is being investigating, and for which effect. The thesis will recommend the use of eye-tracking technology, not yet considered by the US Supreme Court TCB cases nor the TCB effects-research literature. Eye-tracking will be suggested as most relevant in relation to distraction-effects caused by the TCB cameras (and operators) in the courtroom (ie in-court effects).23 Eye-tracking will also be suggested as relevant to opening wider research opportunities, such as in relation to education-effects and audience-effects.

The thesis will suggest that is time to advance beyond the criticism that ‘[s]ocial scientists measure the intelligence of monkeys more effectively than courts have attempted to ascertain the effects of television in the courtroom.’ It will also explore the limits of past TCB self-reports and opinion-reports. The thesis will propose a method for addressing some of the US Supreme Courts issues, concerns and challenges (relevant here as well as elsewhere) and in a manner which is structured, defined and comparable across the respective research. It is suggested that in future, we should be able to compare identical TCB effects-research across studies and across jurisdictions.

While each chapter could be deserving of an entire thesis on its own right, the core theme will remain a normative analysis of the legal-policy issues, concerns, challenges and some of the normative opportunities available regarding the TCB effects-research and concerns. A valid contribution involves consideration of what amounts to acceptable ‘evidence’ for courts and legal-policymakers to consider regarding the TCB question(s). The thesis will explore the legal-empirical research concerns of the US Supreme Court, and relevant beyond the US Supreme Court, in relation to TCB distraction-effects and explores the current opportunity for normative TCB distraction-effects research. Important legal-rights may not be (fully) respected and vindicated without more normative effects-research. Eye-tracking is used to optimise advertising and adverts. It is also used increasingly to optimise safety and safety design. The thesis suggests that TCB

23 Eye-trackers allow ‘continuous measurement of eye movements.’ ‘An Affordable Future

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tracking should now be used to optimise the research of TCB distraction-effects and other effects and concerns. This will help to optimise our normative consideration of TCB, TCB access, TCB risks and concerns and, in certain circumstances, to assist better design of TCB. Better TCB design may encompass better choices of TCB models which reduce risk, distraction, etc, and or have greater potential to be educational. That these are all contemporary concerns is reiterated by such things as the Pistorius24 case, a pending Irish TCB access application25 and the comments from the Lord Chief Justice of England and Wales halting further expanded TCB and calling for more principled effects-research.26 It will also ensure that we advance beyond the problem with the prior research and popular discussion which relies too heavily on mere opinion over independent verifiable evidence.

24 State v Oscar Pistorius Pretoria, South Africa, Case No C13/255/13.

25 J McCarthy, ‘Teacher Argues For Libel Court Case to be Televised’ Sunday Times (Dublin

13 July 2014). Judge Keane was scheduled to hear the application on 24 November 2014. There does not appear to have been a successful application.

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ACKNOWLEDGEMENTS I offer my thanks and appreciation to my mother and late father.

I thank Siobhan, Allison, Stephen, Kitty and Steve O’Connor, Ian, David, Deirdre, Eimear, Vinny, Mal, Sean, Dr John Murray, TJ McIntyre, David Linehan, Bob Clark, Devorah Eisenberg, Elizabeth Loftus, Marie McGonagle, Liam O’Malley, variously for their kind assistance, suggestions, inspiration, vision and or friendship over the years.

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‘Mankind has a remarkable interest in sensational legal cases. Television ... devot[es] considerable attention to sensational details of legal cases.’1

TCB ‘trivializes the system, … provides us with our daily dose of shock and fear [and] will always be chosen over the case of [a social justice case].’2

‘with the media turning justice into a sporting event, the integrity of the courts is lost.’3

‘The purpose of the court is not education and not spectacle or public entertainment, but justice.’4

‘Social scientists measure the intelligence of monkeys more effectively than courts have attempted to ascertain the effects of television in the courtroom.’5

‘The increasing tendency of criminal justice debate in Ireland to be ill-informed and populist has been discussed by a number of commentators.’6

Most of the TCB arguments and discussions are ‘self-serving assertions with next to no evidence to support them,’ and the author ‘sets out a sensible approach to replace hot air with hard evidence.’7

1 E Hall, in an introduction to McDonnell Bodkin, Famous Irish Trials (Blackhall Printing

1997) vii.

2 G Spence, ‘Justice: The New Commodity’ (March 1992) ABA Journal 46, as referred to in

RER Stewart, ‘The Changing Relationship between Cameras and Courts’ (MA thesis, Florida Atlantic University 1998) 34.

3 G Spence, ibid.

4 G Gerber, ‘Courtroom TV Makes for Low-budget Entertainment’ (interview on NPR

Morning Edition 12 July 1994), referred to in C Lassiter, ‘Put the Lens Cap Back on Cameras in the Court Room: A Fair Trial in at Stake’ (1994) Law and Justice 111, 119.

5 J Hirschhorn, ‘Cameras in the Courtroom? No’ (1980) 7:3 Barrister 7 and 9.

6 M Coen and L Heffernan, ‘Juror Comprehension of Expert Evidence, A Reform Agenda’

(2010) Criminal Law Review 195, at n18, at 78, referring to commentators such as A Hardiman, ‘Weasel Words and Doubtful Meanings: A Study in the Language of Law “Reform”’ (2007) 7 Judicial Studies Institute Journal 1; L Campbell, ‘Criminal Justice and Penal Populism in Ireland’ (2008) 28 Legal Studies 559.

7 MM Feeley, Claire Sanders Clements Dean’s Professor Jurisprudence and Social Policy

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CONTENTS

1 Introduction 19 – 52

2 UK, Background and Context 53 – 70

3 Recent Developments 71 – 86

4 Ireland 87 – 134

5 The US Supreme Court Challenge 135 – 186

6 Defining TCB 187 – 214

7 TCB Genre(s) and Format(s) 215 – 240

8 TCB Effects-Research 241 – 270

9 Limited Legal-Empirical Research 271 – 294

10 Legal-Empirical Research and Comparisons 295 – 314

11 Legal-Psychology 315 – 338

12 Eye-Tracking and US Supreme Court Challenge 339 – 362 13 Eye-Tracking Technology, Examples and Ethics 363 – 390

14 TCB Eye-Tracking Demonstration 391 – 438

15 Topography, Visual Cone-of-Vision, Location & Design 439 – 480

16 TCB Eye-Tracking Research and Models 481 – 494

17 Wider TCB Eye-Tracking Models 495 – 510

18 Out-of-Court Education-Effects 511 – 552

19 Towards Education and Audience Research Models 553 – 598 20 International, Public and Judicial Research 599 – 640

21 Future Research Considerations 641 – 672

22 Conclusion 673 – 686

Appendices

A1 Scope and Carveouts 689 – 694

A2 General (Non Empirical) Research Literature 695 – 700

A3 A Suggested Categorisation TCB Forms 701 – 708

A4 Eye-Tracking Examples 709 – 714

A5 Sample of Court Related Programmes in Ireland and UK 715 – 720

A6 Irish Judicial Questionnaire 721 – 760

A7 Eye-Tracking Proof-of-Concept Demonstration 761 – 780

A8 Analysing Television News 781 – 782

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CHAPTER 1:INTRODUCTION Introduction

The thesis relates to a most important and current topic. The UK Crime and Courts Act 2013 was passed through the UK Parliament and potentially enables the recording of court proceedings beyond the single exception of the UK Supreme Court which recently permits TCB. This is part of a recent push or lobby for TCB in the UK. Yet, even after the recent example of the UK Supreme Court TCB, and some Court of Appeal1 examples, the individualised judicial decision to permit TCB in the Pistorius2 case may ultimately lead to a further3 setback to the cause of TCB. The Lord Chief Justice of England and Wales has called for a halt to further TCB moves in England and Wales.4 He says that ‘the Pistorius trial has troubled me and I would like to think and see where we are going’ and has commissioned a report on TCB issues. This is reflective of the ongoing and undecided debate surrounding the TCB question. Therefore, the thesis is a welcome addition to the literature. It deals with the issues of open justice and the effects of TCB. In doing so it assesses different types of CB and considers research from different perspectives and jurisdictions. It introduces a very pertinent question for all concerned as to whether technology influences the effect of broadcasting legal proceedings, and ultimately whether TCB is advisable without knowing the effects and whether some forms of TCB are more/less desirable and problematic than others. The issue of TCB raises a number of complex legal issues. It also raises complex legal-policy issues for courts, commentators, participants, lawyers and legal-policymakers. Both issues depend to a large extent on the effect issues, concerns and arguments, be they positive or negative. Many important TCB questions remain live issues of concern.

The idea of opening up courtrooms to TCB is certainly one which interests lawyers, broadcasters and the public in general. The Simpson5 (criminal) case is a particular example. The arguments, for and against TCB, continue for example whether there are in-court distraction-effects; whether there are out-of-court education-effects. The thesis examines the research seeking to back up and address these concerns and arguments. The legal cases which have been most concerned with TCB have been underwhelmed with the

1 The first UK Court of Appeal TCB broadcast occurred on 31 October 2013. See S

Marshall, ‘“Landmark’ Day as TV Cameras Enter Court of Appeal,’ Journalism.co.uk (30 October 2013) < http://www.journalism.co.uk/news/tv-cameras-permitted-in-court-of-appeal-from-tomorrow/s2/a554617/ > accessed 22 August 2014.

2 State v Oscar Pistorius Pretoria, South Africa, Case No C13/255/13.

3 The OJ Simpson (criminal) case and the many TCB related changes and problems which

occurred during the case led to increased reluctantance towards embracing TCB and particularly celebrity and entertainment type TCB cases.

4 F Gibb, ‘Britain Rethinks Cameras in Court’ Times (London, 16 May 2014).

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overall lack of considered legal-empirical research with which to inform court considerations of the proposed TCB positive and negative effects arguments. The thesis examines the research which exists and considers it from a normative legal-policy and legal-empirical research perspective. Such a normative modern assessment is able to identify not only the surprising small amount of considered research to date to assist courts and legal-policymakers, but also many of the problems undermining the research studies to date. In fact, the thesis raises questions over the ability of courts and legal-policymakers to rely on and be assured by the body of TCB effects-research to date, which rests on mere opinions. This is unfortunate. More worryingly, it creates problems for the courts and legal-policymakers of today whom may have to consider TCB legal and legal-policy issues, arguments and effects concerns. The thesis will also examine some of the particular effects issues, such as the in-court distraction-effects of the TCB cameras and or TCB cameras plus operator. Today’s courts may be legitimately concerned to ask if the legal-empirical research has proven positive and negative TCB effects. Unfortunately, the thesis analysis shows that the body of TCB research is less than optimum and inconclusive. The thesis research goes beyond the problem issues to identify some of the potential normative research solutions to assist courts and legal-policymakers in considering and dealing with the issues as may arise in relation to the TCB effect issues, disputes and concerns.

The headline list of those whom may be (positively or negatively) affected by TCB are lawyers; juries (in-court); prospective juries (out-of-court); judges; defendants; parties; witnesses; court personnel; courtroom participants effects generally; other in-court issues; audience; public at large; and public in-court.

The latter category does not appear to have been considered or discussed in the literature. However, that the judge in the South African Pistorius6 case has had to admonish the public in court for their behaviour7 signifies that this might need to be further considered and researched. It might potentially become an argument against the use of TCB in celebrity or famous trial situations. The above also indicates that the issues include in-court TCB effect issues and out-of-in-court effect issues.

Considerations of Distraction

6 State v Oscar Pistorius Pretoria, South Africa, Case No C13/255/13.

7 The second example of the judge having to so intervene occurred on 17 April 2014. Chief

Justice Susan Denham has also commented on some of the challenges for courts arising from social media issues. See N Andersen, ‘Chief Justice Warns of Social Media Pitfalls’

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One of the frequent arguments, and indeed concerns, is that some or all of the participants in the courtroom will be adversely distracted by the TCB camera(s) and or TCB camera operator(s) in the courtroom. The thesis leads us to explore and consider the problems. Such an analysis requires looking at the judicial statements, concerns, literature and the studies so far conducted to examine these potential distraction-effect issues and problems. It is also noted that despite miniature cameras, many instances of TCB still use large cameras, and some still use camera operators, in court.

In terms of the in-court effects, the thesis aims to explore the TCB distraction-effects research to date and to assess it on a normative basis and to propose a solution to the problems and gaps in relation to TCB distraction-effects research. The process and research lead to a suggestion that the research models available today, as compared with the past research, offer better ways to research TCB distraction-effects. In some instances the offer exact research evidence, not mere opinion. In a way, therefore, the thesis addresses the continued concerns with TCB distraction-effects by suggesting a new and normative model for examining TCB distraction-effects. This includes using eye-tracking to examine TCB distraction-effects in mock trial situations. These can be in actual courtrooms or in similar representative settings. It is not (presently) being suggested that eye-tracking be used in real or live cases.8 The thesis suggests, however, that the use of eye-tracking is feasible and overcome many of the problems identified in relation to the TCB distraction-effects research to date. In addition, the thesis provides an actual proof-of-concept demonstration of TCB distraction-effects related eye-tracker usage in a courtroom. This indicates that such use is potentially feasible and also points to important issues in relation to visual cone-of-vision and location-effect issues (see below) in relation to TCB effects, TCB distraction-effects as well as legal-policy issues regarding the design of TCB programmes and TCB courtrooms. The thesis, therefore, refers to normative TCB distraction-effect issues, research and potential normative legal-empirical research solutions to the challenge of addressing the concerns inherent with the TCB question and advancing beyond mere opinion as evidence.

The TCB distraction-effects concerns date from 1965, if not earlier. That was the date of the first US Supreme Court TCB case (Estes9). When the TCB literature and the effects-research are examined, however, it appears that there is as yet no conclusions to be drawn as to the distraction-effects concerns. Reviewing the literature and research indicates that

8 This may be possible in a live case but would first need further detailed analysis and

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there is in fact very little research of the TCB distraction-effect concerns. The thesis focuses on an examination of the various effects concerns, the opinion-problem, the distraction-effects research to date, and draws normative suggestions in relation to future distraction-effects research. Such research is better than the historical research and overcomes some of the problems of the historical research.10 The thesis, therefore, examines legal cross-disciplinary research which assists in assessing the distraction-effect concerns relating to TCB in court. This is necessary as the concerns have not been answered as yet. The concerns remain and continue to be ventilated.11 Witness effects may be one of the judicial concerns in the UK following the Pistorius12 case. The thesis deals with the normative issues of dealing with contemporary TCB distraction-effects of TCB. It considers and provides advantages over the distraction-effects research to date, which frequently comprise of self-reports, opinion-reports and observer-reports. Many of the problems with this historical research are reviewed.13

The issue of what is CB is seldom if at all considered analytically. The thesis explores an analysis of the nuances of TCB and different TCB forms which may assist judicial and legal-policy consideration of TCB issues in future. These are important issues which deserve more than mere popular discussion and argument which has avoided consideration of normative verifiable legal-empirical research.

Literature Review

Surprisingly, the issue of distraction-effects of in-court TCB has seldom been researched and no firm conclusions have been drawn. The concerns of commentators and also the US Supreme Court in relation to distraction have not been answered. The body of TCB distraction-effects research is, as yet, too small to draw conclusions. The overall body of TCB effects-research appears limited to just over twenty legal-empirical studies. 9 Estes v Texas 381 US [1964] 532.

10 This requires legal cross-disciplinary research, which is potentially one of the reasons why

there is so little research directed at the concerns highlighted by the US Supreme Court.

11 The instances of TCB continue to interest lawyers, the media, the public as well as legal

and legal-policymakers. Various arguments for and against TCB continue to be ventilated. The US Supreme Court has also voiced concerns of potential adverse and positive effects.

12 State v Oscar Pistorius Pretoria, South Africa, Case No C13/255/13.

13 Overcoming these problems cannot be assessed purely on a non-cross-disciplinary legal

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However, the TCB eye-tracking research proposed by the thesis can lead to such a body of exacting, verifiable and replicated distraction-effects research which is lacking so far.

Original Contribution

The distraction-effect concerns voiced at least as early as 1965 remain real concerns. Unfortunately, neither the commentary nor the small number of studies to date, have been able to answer the TCB distraction-effect concerns of courts and others. Within the studies to date there are problems such as self-reporting, opinion-reporting, observer-reporting, non-replication and non-verification. The suggestion of how eye-tracking may answer the TCB distraction-effects concerns offers a new, novel and original contribution to assist courts.14 In addition, the thesis also encompasses the first in-court demonstration of eye-tracking research, in this instance for TCB in-court distraction-effects research. The thesis identifies the potential of TCB eye-tracking research, and the related research regarding visual cones-of-vision and location-effects issues, in relation to TCB policy, design and location discussion in future. Just as S Prince15 has queried the utility of a blanket ban on TCB in the Criminal Justice Act 1925 of England and Wales, one can query the presumption that there is just one form of TCB, and that distraction, education, etc, will be uniform for all forms and instances of TCB. The TCB eye-tracking demonstration, the visual cones-of-vision issues and the location-effects issues highlighted, suggest that TCB is more diverse and nuanced than the discussion to date and that the TCB distraction-effects research, legal-policy discussion and design considerations need to be looked at in the context of today’s normative research capabilities.

Need for Research

There is no sufficient body of legal-empirical distraction-effects research of TCB sufficient to answer the concerns.16 There is not enough research per se. The research to date is frequently limited and unverified.17 Many arguments are not sufficiently defined, established or verified, whether generally or empirically. The TCB arguments are also

14 P Lambert, ‘Eyeing the Supreme Court’s Challenge: A Proposal to Use Eye Tracking to

Determine the Effects of Television Courtroom Broadcasting’ (2011) 1:3 Reynolds Courts and Media Law Journal 277; P Lambert, Courting Publicity, Twitter and Television Cameras in Court (Bloomsbury 2011).

15 S Prince, ‘Is Court TV A Favourable Proposition: A Normative and Comparative Analysis

of the Transmission of Courtroom Proceedings on Television?’ (PhD thesis, University of Exeter 2003) 9.

16 While the thesis is concerned with TCB distraction issues, there are also other significant

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generally presumptive. One example is the presumption that TCB will be distracting. This has not been properly defined or researched. It has not yet been proven to be correct. The presumption also that there will be no distraction-effects is over-simplistic. Also, there is a general presumption that if there are distraction-effects, these will be short-lived. Eye-tracking can now test, to see if there are distraction-effects; and to see if the distraction-effects are short-lived.

Again, these are new normative research opportunities absent in the historical TCB research. This information was not available to courts and legal-policymakers previously. If there are distraction-effects, and if these are significant, or significant for particular courtroom participants,18 there may well be merit re-calibrating the legal-policy, arguments and legal rights issues discussed heretofore. There are particular implications for legal-policy to consider if the presumption of short-lived effects is incorrect, or incorrect for certain categories of courtroom participant and courtroom forms. The nuance of graduated effects needs to be better explored.

No one has yet been able to show the full extent of the distraction-effect concerns. Research can consider where and how it may occur. Interested parties need to consider whether it affects all courtroom participants. Parties in legal cases may need to evaluate whether a certain amount of distraction-effects is acceptable and if so, how much. In terms of research, we might examine whether eye-tracking research supports the previous TCB self-reports, opinion-reports and observer-reports. There may be serious implications for legal arguments and legal-policy if TCB distraction-effects are verified by eye-tracking research. Eye-tracking research may impact upon issues such as the visual cones-of-vision of the courtroom participants19 and the future design and layout of courtrooms for TCB. Detailed analysis can consider whether the location of TCB cameras in future may be impacted by, and benefit from, TCB research of distraction-effects. Technical issues arise such as which TCB cameras are best for TCB. In terms of safety and legal-policy, interested parties can consider which TCB forms distract least or not at all. Legal-policy issues such as whether TCB rules mandate specific TCB, TCB locations and TCB television equipment ultimately arise to be considered in appropriate instances.

17 See variously below.

18 That is, if the effects are graduated as between different courtroom participants. This

graduated effects issue is not fully or explicitly considered in the literature to date.

19 This refers to what an individual courtroom participant can see in the visual range of the

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There is no proper evidence of positive or negative effects because no ongoing body of legal-empirical research properly defines such effects nor researches for such effects. No body of replicated research has properly set out any particular effect it is seeking to investigate in relation to any particular form of TCB. It is difficult, therefore, to arrive at properly valid, and generalisable, research conclusions. There is a general absence of TCB research which has been subsequently replicated and verified. The debate and research to date is often so basic and limited, that no firm conclusions for courts and judges can be drawn from it.

One consideration is whether TCB will educate. We should be so interested as to examine why it will educate, whom it will educate, what TCB forms will educate and which forms will educate best. Review and analysis raises the important issue of how we might know some, or any, TCB will educate. Nuanced research might consider what amount (or standard) of educative value is required for TCB to be considered as being educational, or alternatively for the countervailing arguments to be outweighed. Research might consider how to define ‘education’ and to measure ‘educational TCB.’ Fundamentally, we need to consider how we assess whether the intended policy effect of education in a given TCB pilot period/experiment, is successful or unsuccessful.

If we are considering effects on courtroom participants, we might indicate which participants are being investigated, and how. It is important to say what TCB camera types are involved, where the TCB camera is located, where the participants are located, etc.20 In most previous research this valuable research data has not been recorded and is absent for future researchers. This has important consequences.

None of the TCB arguments really address the fact that there are different ways to film courtroom proceedings, different TCB camera technology issues, location issues and that there are different ways to present and edit footage. There are also different ways to broadcast it to the public. The varied and diverse effect issues which are involved in TCB have received less than considered analysis. There is clearly scope for TCB

20 A review of the literature indicates that even some of these simple points on the map of

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research beyond eye-tracking. It is also important that future research addresses the absence of an overall categorisational map of the different forms of CB and TCB.21

Out-of-Court Effects-Research

If we want a full discussion on the many issues and complexities of TCB, we also need to move outside of the courtroom – and bring a robust research focus with us. There is no proper body of research into effects on the viewing (and non-viewing) public.22 This focuses on the actual TCB audience, as well as the wider audience as may discuss and consider cases covered by TCB. This is relevant for legal and legal-policy reasons. Consider, for example, what the public might learn from a televised celebrity murder case, from a televised commercial law case or from an environmental law case. We may consider whether they are equal. One question may be whether the audience might be equally educated. No CB argument has consistently sought to distinguish the types of cases and legal issues which occur. This thesis critiques the research to date and proposes how we may begin to bridge the research challenges with, for example, definitions, eye-tracking, a suggested categorisation of the forms of TCB and how better to assess the TCB effects evidence for legal and legal-policy purposes.

Comparisons and Tools

Our definitions and methods for researching the effects of TCB can draw on wider research disciplines and methods. Subjects at law schools internationally also suggest avenues for better research of TCB effects. Criminology and legal-psychology are just two examples of cross-disciplinary legal-research. We should not limit ourselves solely to narrow legal pigeon holes, such as a non-specific popular literature, legal Constitutional literature, legal contempt principles, etc, alone when considering TCB. We need to broaden our horizons and embrace normative cross-disciplinary legal research opportunities. The thesis assesses existing legal-psychology research into crimes,

21 A map may allow research to identify which particular form of courtroom broadcasting is

being researched in any given instance. Within the particular form in question, we can then identify which particular effect we are researching within that form. For example, we could examine and research education-effects of the radio courtroom broadcasting (RCB) form and the education-effects of the TCB form, and then compare them. Such a global map also assists our formation of definitions. No discussion or argument can be sufficiently considered, or compared, unless it identifies the TCB form (and or sub-form) to which it relates. Are trial cases different from appeal cases? Are criminal cases different from civil cases? Does showing brief snippets differ from showing extended coverage? Significant research challenges remain to be addressed.

22 There are only a limited number of standalone studies. See belowand Appendices.

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witnesses, eyewitness identification, communications and media research suggests how existing research and research tools in these areas can also aid TCB research.23

Self-Reports, Opinion-Reports and Observer-Reports

One of the significant problems of the TCB effects-research is that previous researchers have too frequently relied solely on self-reports, opinion-reports and observer-reports. Self-reports are questions to individual courtroom participants asking them if they themselves were affected by the TCB. In terms of relying on self-reports, and self-report conclusions, these cannot be overly relied upon and are often criticised in general research literature.24

Other investigations have asked TCB participants to report on whether they felt other participants were affected. These are opinion-reports. Again, they also suffer from being not neutral, opinion based and coming from possible bias. Self-reports and opinion-reports have been overly relied upon in TCB research. This potentially undermines a substantial amount of the research literature on TCB.

In a very few instances a third method of investigation has been involved. Third party observers have been used to attend TCB cases and report on whether the participants were affected (observer-reports). While better than self-reporting and opinion-reporting, this type of research has been too infrequent. The methodology also differs from one observer study to the next. These TCB studies can also have their own problems. For example, it is not always clear if all possible data has been researched, such as the observer location, the camera location and the respective courtroom participants’ locations.25 These can be very important research and data in assessing and purported conclusions. Judges and researchers today should be able to assess and have available such data.

Overall, these three methods of research have often been basic and simplistic in methodology. The self-report, opinion-report and few observer-report studies also have problems in terms of the results and methodologies not being repeated or replicated in

23 See out-of-court related chapters below.

24 While self-reports can be worth undertaking (if undertaken and recorded properly), sole

reliance on self-reports is less than optimum. The replies are personal, non-neutral, are opinion based and can be biased.

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subsequent studies. They are, therefore, not validated by peer research. Legal-empirical research often requires repetition and validation by later studies.26

While forms of TCB have existed in certain jurisdictions27 for some time, the amount of research is small. The limited scope of these studies have been described by one commentator as ‘qualitatively inadequate.’28 It is hoped and suggested that more normative nuanced and comparative research will be used in future in an effort to better consider the full implications of TCB for the legal justice system, the public, and to also address the US Supreme Court (and others’) concerns. This thesis examines some of the avenues and wider research possibilities which are available but ignored thus far eg TCB eye-tracking.

TCB effects-research is almost solely confined to these limited self-reported personal views of certain individuals in the court process.29 Only certain people are asked and not across all categories of persons in court. The study population is often statistically limited. The quality of the questions vary from study to study. Typically the self-report studies are not repeated and or replicated. They are, therefore, not validated by peer research. Typically the public in court are not asked. Many of the courtroom participants who give self-reports are professionally trained or experienced. Defendants are typically not asked to participate in self-report research studies. Also, such studies generally appear not to be drafted by the persons most qualified to draft them or to appreciate the

26 We also need to consider definitions and an overall map of the TCB process. We should

identify all of the areas and issues which need to be researched. Only by looking at the whole map can we start to see what particular issues and what particular areas have been researched to date. By doing this we then see how many areas have not been defined and have not been researched. We see how many studies research a particular issue. We can try to compare these and verify these. We can also see what complimentary research and research methods from other disciplines can be applied to the TCB research concerns. When we do this we start to see where existing research can be complimentary, as well comparative research tools. The research effort does not focus on the potential different effects of different forms of courtroom broadcasting and TCB.

27 Courtroom broadcasting has not occurred (apart from selective background shots) in Ireland

albeit the Law Reform Commission briefly commented on the issue of courtroom broadcasting in its Report on Contempt of Court (LRC 47-1994) 22-25. K Wood has also called for court and tribunal broadcasting, see for example K Wood, ‘Calls for Live TV of Tribunals’ Sunday Business Post (Dublin, 30 April 2000). Note also a paper presented by Hon Mr Justice Carney to Dublin University entitled ‘Restrictions on the Media Other Than Defamation’ (date unavailable). See also, OR Goodenough, ‘Retheorising Privacy and Publicity’ (1997) 1 Intellectual Property Quarterly 37, 39.

28 See D Slater and VP Hans, ‘Methodological Issues in the Evaluation of “Experiments” with

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legal-empirical issues involved. Judges and court personnel (alone) are also arguably not the best qualified to conduct this research, as appears to occur in some instances. They may also be unfamiliar with the ample comparative cross-disciplinary research available to assist. It is hoped that the thesis may assist in this regard.

Most of the research to date is non-empirical, subjective research. It mostly asks a few courtroom participants how they subjectively feel. To rely on self-reports, opinion-reports and limited observer-opinion-reports as the sole indicator of, for example, whether there are TCB distraction-effects, is not the optimum research strategy. Regardless of whether it was ever the best research, it is no longer the best normative TCB research strategy today.

Little Legal-Empirical Research

The legal-empirical research of TCB effects is surprisingly small.30 The volume of such legal-empirical research needs to be increased.31 Lawyers, legal-policymakers and the judiciary should support and embrace legal cross-disciplinary research if it can assist in addressing the concerns that exist in relation to TCB distraction-effects. Perhaps lawyers, legal-policymakers and the judiciary should not be content to rely upon just over twenty TCB legal-empirical studies since 1953. When important distraction-effect concerns exist, we should not rely on less than optimum research and research methodologies. Given the important legal, liberty and legal rights concerns at stake, we should aspire to the optimum research possible. The thesis explores how we might engage in better TCB distraction-effects research and attempting to assuage the concerns.

A Brief History of CB and Research

While focusing on the effects-research of TCB, some reference to the origins of CB is necessary. Television was first demonstrated in 1928.32 The first reported TCB broadcast occurred in Oklahoma in 1953, where a camera was placed in a special booth33 at the 29 It is also particularly difficult, for example, to gauge ones own non verbal communications,

as noted in T-R Valikoski, The Criminal Trial as a Speech Communication Situation

(University of Tampere, Finland 2004), and references therein.

30 There are apparently just over twenty legal-empirical studies of the TCB concerns. 31 This may be because such research can be complex, time consuming, expensive and cannot

be undertaken individually or with only a small number of people. The optimum research expertise may not rest with one individual, one school of research expertise or with lawyers and judges alone. Certain TCB research may best to undertake legal cross-disciplinary research. The media might better highlight some of the media/communications TCB research opportunities.

32 A Durant and M Lambrou, Language and Media (Routledge 2009) 244.

33 Indeed, one of the criticisms when trying to distinguish one courtroom broadcast form from

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back of the courtroom.34 Courtroom footage was previously filmed and then shown in cinemas for a period (MCB).35 Despite this, TCB continues to be debated,36 and is still a ‘controversial and dividing issue,’37 even in the US. The arguments in relation to effects are still ‘ongoing.’38 These debates are enhanced during the latest celebrity trials, such as

Simpson, Kennedy Smith, Menendez, Woodward, Jackson, Dr Murray, James Holmes

(Aurora ‘Batman’ case), Pistorius39, etc.40

Ireland

Popular TCB debate occurs in Ireland on occasion, as it does elsewhere. There was also a recent attempt by a lay litigant to have TCB of his case. TCB arguments receive particular media attention at times of (generally US) celebrity trials.41 The Simpson42 (criminal) case is a particular example.43 Regardless of the US experience, people in other countries sometimes consider whether TCB should be permitted there. For

34 Referred to in S Barber, above 10.

35 Cinema courtroom broadcasting would appear to be historic at this stage. It is also beyond

the scope of the current work.

36 See, for example, application for permission to broadcast in the case of Sony, Warner,

Atlantic, Arista and UMG, Court of Appeals For the First Circuit, No 09-1090, Amicus

Brief 29 January 2009 <

www.eff.org/files/filenode/inresonybmgetal/CVNMotionOralArgument.pdf > accessed 18 January 2014.

37 PE Thaler, ‘The Impact of the Television Camera on Courtroom Participants: A Case Study

of the Joel Steinberg Murder Trial’ (PhD thesis, New York University 1990) 176.

38 RER Stewart, above 9.

39 State v Oscar Pistorius Pretoria, South Africa, Case No C13/255/13.

40 Most televised cases in the US are under local state rules, not national or Federal rules.

These all differ, sometimes vastly. Indeed, a pilot scheme undertaken in Federal courts was discontinued, as was a pilot scheme in New York. See, for example, G Comstock et al,

Television and Human Behaviour (Columbia University Press 1978), as referred to in D McQuail and S Windahl, above 67; D Stepniak, above 102. Note, however, that there is a more recent second Federal pilot experiment ongoing. See ‘Judiciary Approves Pilot Project for Cameras in District Court,’ < www.uscourts.gov > accessed 14 October 2010; and See D Stepniak, above 102; also X O’Brien et al, ‘Chapter Eight: Cameras in the

Courts,’ Media Law Handbook, <

www.isba.org/newscenter/medialawhandbook/CHAPTER%2008%20-%20Cameras%20in%20the%20Courtroom.pdf > accessed 11 September 2010 and also Lee, ‘Cameras in the Courtroom,’ First Amendment Centre, < www.firstamendmentcenter.org/Press/topic.aspx?topic=cameras_courtroom > accessed 11 September 2010.

41 Most of this media and public attention occurs in the US, partly due to the fact that many

US states permit some form(s) of courtroom broadcasting.

42 The OJ Simpson (criminal) case where he was charged and acquitted of a double murder. 43 It is arguably unfortunate that examples of popular (‘popular’ is used in its media analysis

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example, should it be permitted in Ireland?44 The arguments, whether for and against, occur in many jurisdictions. Examples of the arguments include that TCB will be educational (or not) or that TCB will/will not adversely affect the courtroom participants45 eg distraction of courtroom participants. However, we might consider whether the arguments have been properly defined, researched and proven. This thesis suggests that some of these questions may not yet have ready answers or positive answers. There are many research flaws, gaps and challenges. Significantly, we have too few studies regarding the nuances of TCB.

Ultimately, there is no TCB in Ireland. There is, therefore, no direct legal-empirical research of effects of Irish TCB to examine.46 The author undertook the first baseline TCB effects related research in Ireland with a judicial attitudes survey. It was described as ‘the only study conducted with regard to the topic in Ireland.’47 The judicial attitudes survey has been expanded and repeated.48 In addition, the author undertook the first representative research in Ireland regarding audience/public attitudes.49 These can act as part of the initial baseline research for future Irish TCB research. The author also successfully undertook a proof-of-concept demonstration of eye-tracking technology for TCB distraction-effects research.

Irish judges agreed that expert psychological testimony can be relevant with regard to eyewitness capability and credibility.50 This is relevant as this type of comparative research can assist in TCB research. It is important also that the potential for appropriate cross-disciplinary legal-empirical research, including legal-psychology, is recognised. The question of whether TCB is distracting is not yet answered. There is no sufficient and sustained body of legal-empirical research. The author suggests that eye-tracking can pave the way for meaningful and normative TCB distraction-effects research.

44 Indeed, there are some who would argue that there are many positives in the experience

elsewhere, and that therefore this is justification for courtroom broadcasting outside of the US, including Ireland. Strictly speaking the arguments on either side are beyond the scope of this work however, as pointed out above.

45 Sometimes referred to in the general literature as courtroom actors.

46 However, an examination of the research issues and challenges elsewhere, is still relevant

to any discussion of courtroom broadcasting in Ireland, as well as being of wider interest. It is, therefore, useful to refer to some of the research challenges, issues and the landscape in Ireland.

47 P Newenham, ‘Televising the Courts: An Exploration of Opinions of Irish Media and Legal

Professions’ (Masters in Journalism thesis, DCU 2008) 35.

48 Extensive efforts to expand the survey on a cross-jurisdictional basis involving Northern

Ireland, Scotland and England and Wales were unsuccessful. Separate efforts to engage the television and press media in Ireland in relation to their views to TCB were met with limited response.

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tracking overcomes the shortcomings of the self-reports, opinion-reports and observer-reports. Appreciating the camera locations and participant location-effect issues are also crucial. Comparing TCB locations data systematically can assist us to fully appreciate the TCB camera and distraction-effect issues.

Despite the longstanding debates, there is still no conclusion to the effects-debates, be it in the US or elsewhere. One of the points in terms of this thesis, is that there is no sufficient body of verified research to decide the TCB effect questions. That is because there is no substantive and sufficiently detailed body of legal-empirical effects-research addressing the concerns. That applies to the in-court concerns (such as distraction-effects) and the out-of-court effects concerns regarding the public and audience (such as entertainment, etc).51 We need much more legal-empirical research of the impact of TCB.52 The quality of the research can also be enhanced.

No body of research examines audience effects. This is the out-of-court TCB effects arena. We need many more studies to research the impact of TCB content, forms, effects and related audience issues. The only specific legal-empirical audience-effects research appears to be AR Paddon, the New York study, the New Zealand study and in part the first Federal pilot.53

50 68.57 percent agreed with this. See Part 2 Question B-1 of the associated judicial

attitudinal survey, see Judicial Questionnaire in Appendices.

51 The only specific empirical audience effects research appears to be AR Paddon plus part the

following studies: the first Federal pilot; the New York study; and the New Zealand study. This does not include rating penetration figures. AR Paddon, ‘Television Coverage of Criminal Trials with Cameras and Microphones: A Laboratory Experiment of Audience Effects’ (PhD thesis, University of Tennessee, Knoxville 1985); MT Johnson and C Krafka,

Pilot Program Involving Electronic Coverage in Six US District Courts and Two Appeal Courts (Federal Judicial Centre) [in part only]; New York State Committee to Review Audio-Visual Coverage of Court Proceedings, An Open Courtroom: Cameras in New York Courts

(Fordham University Press 1997) [in part only]; K Allan, Professor J McGregor, S Fountaine (Massey University), The Impact of Television, Radio and Still Photography Coverage of Court Proceedings, Final Report, A Report for the Department for Courts

(April 1998)(New Zealand).

52 In terms of many aspects of TCB, there is no effects research at all. There are too many

research gaps. The creation of an overall map of courtroom broadcasting and TCB will assist us in revealing the gaps in research. Large amounts of so called ‘research’ of TCB must be discounted. This includes non-empirical research. There are various reasons. Some: appear no longer available; do not record statistics or sources; do not define a methodology of investigation - or such methodology is unsound; and there is no link between the investigation and the conclusions suggested.

53 AR Paddon, above; MT Johnson and C Krafka, above; New York State Committee to

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