With the Maxwell Trial is making national headlines, many are left wondering for the first time…
Why can’t I watch the trial live on YouTube, like the Trial of Kyle Rittenhouse?
And many believe this means ‘they’ have something to hide.
Here’s the catch, no federal trials are currently live-streamed. At least not with a video feed.
While most federal trials offer a call-in number for the public, this was denied to the public in the Trial of Maxwell.
But why?
Well, there are actually some very good reasons, that you may want to consider.
Let’s dive in!
The Public Believes ALL Trials Should Be Livestreamed
While covering the Maxwell Trial, I ran a poll asking the audience whether or not they believed that ALL trials should be live-streamed.
And the resounding result? More than 80% believed that ALL trials should be live-streamed.
Well, there is no denying in my opinion that these results are directly skewed by the prominence of the Trial itself. And most are not considering the fact that they could be the ones on trial.
After all, a separate poll I conducted showed that most (70%+) believed that a Defendant should not have a say in whether or not their Trial is live-streamed. And this logic is entirely misguided.
Many say that “if you have nothing to hide” why is it a problem? Which is a similar line of logic is offered by police officers attempting to search a vehicle without a warrant…
So perhaps it’s not a huge surprise that defense attorneys have a different take.
Lawyers Say ‘NO’ Trials Should Not Be Mandatorally Live-streamed
Many criminal defense attorneys say NO Trials should not be live-streamed, ever. Which is in strong contrast with the people we surveyed.
For example, Federal Court Attorney Jason Paupore:
“There is a real debate amongst attorneys and academics about the value of streaming or broadcasting trials….”
“Having spent many years studying this and litigating in federal courts, I personally believe that the rule against live streaming and broadcast is a good one.”
-Attorney Jason Paupore, federal court litigator with Wruck Paupore PC.
And he is not the only one that leans toward NO to live-streaming a trial. After all, most criminal defense attorneys believe that their defendants should not even testify under most circumstances.
For example Defense Attorney Adam Bolotin:
“Some argue that trials must be live-streamed so the public gains a better understanding of the justice system and how it operates. As a criminal defense attorney, I could not disagree more.”
“The sole issue during a criminal trial is my client’s liberty. It is not an exercise or vehicle to educate the public. TV cameras and wall-to-wall coverage with talking heads offering their opinions detracts from what actually occurred in court during the trial.”
-Illinois Criminal Defense Attorney Adam Bolotin, Esq.
And that’s a fair argument. We truly need to consider what our position would be if we were on Trial.
Is the meaning of a public trial evolving with the advent of technology?
Here is where I disagree with the attorneys. And I will get into why in the next section.
In general, it would appear that attorneys believe that the meaning of a public trial is not evolving.
“Generally speaking, the right to a public trial has not changed much since the beginning of our Republic. Broadly, it has included the right for certain people to attend the proceedings in person and for the media to report upon them. However, the advent of radio, television, and now streaming has never been incorporated into what is Court considers to be a ‘public trial.’ ”
“While some courts have allowed broadcast and streaming voluntarily, little has changed from a legal perspective in what is considered a ‘public trial’ with emerging technologies.”
-Attorney Jason Paupore, federal court litigator with Wruck Paupore PC.
And,
“I don’t believe it’s changed with technology. Again, a trial is public so long as people are permitted to observe the trial from the courtroom.”
-Illinois Criminal Defense Attorney Adam Bolotin, Esq.
Should a Defendant be Able to DEMAND a Live-stream of their Trial?
To me, this is the most interesting argument here. I think there is a subtle shift that will eventually improve the fairness of all trials and court hearings. If we can navigate the emerging waters correctly.
I think that a Defendant having the right to Demand the ability of the press to cover the case is an inherent right of what a modern ‘public trial’ would entail. And for this reason, I disagree with the 2 attorneys on whether or not technology is changing the meaning of a public trial.
And I will dive deeper into that claim in a moment.
But first, let’s see what the attorneys think…
“It is the defendant’s right for his/her trial to be public. If anyone should be allowed to make a decision relating to that right, it is the defendant. Personally, I would advise my client not to opt for it for the reasons described above. But I do agree that they should be permitted to make that decision.”
-Illinois Criminal Defense Attorney Adam Bolotin, Esq.
And,
“A fair public trial has never been found to include a right to a particular type of media publicity and there is no Constitutional mandate that allows defendants to insist on a televised or streamed trial. While there are public policy arguments both for and against streaming trials, I do not think any Court is ready to find a defendant is entitled to this.”
-Attorney Jason Paupore, federal court litigator with Wruck Paupore PC.
Both of those a fair points, and while they appear to conflict. I believe that it may have been the phrasing of my question. While I 100% agree with Bolotin on this one…
It wasn’t until I was writing this that I considered the fact that it is also the press’s right not to cover a trial. Which makes Paupore’s statement a very important limitation to said rights of the Defendant. But he does overlook one key change In technology, one which first amendment auditors prove every single day.
And that is….
Each one of us can be the Press, with smartphones anyone of us can live-stream to an audience at a moment’s notice.
My takeaway is that it should be up to the Defendant if they want to live-stream their trial.
Where Freedom of the Press and The Right to A Public Trial Converge
In my experience, there is no dining that technology is shaping what a fair public trial means in the modern age.
Especially, where such rights conflict or converge (and it does both). With the freedom of the press. Both are essential liberties preserved in the Constitution. But at their edges there is conflict, and that conflict is evolving with time.
Of course, there is also a convergence. One needs to look no farther than the Rittenhouse trial where Youtuber CJTV provided new evidence to the defense, which essentially proved the witness was being dishonest on the stand. All while streaming from his office in Seattle. That same evidence was used only days later to impeach the witness’s credibility. Which only served the Rittenhouse defense.
So what happens when one expresses both their right to a Public Trial and to act as their own Press at the same time?
No doubt about it, time will show us the answers.
At The End of The Day: We Have to Set Emotions Aside tp Be Fair
I largely agree with the perspective of the attorneys on this one. If you were the one on trial, I think you may feel the same.
However, in my opinion, I think there is no harm in allowing a Defendant to DEMAND their trial be available to be live-streamed.
Additionally…
I assert that the right to freedom of the Press and a fair Public trial would allow a Defendant to live-stream his own trial in this day.