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Washington Law Review

Jeremy Cohen

Abstract

The issue of cameras in the courtroom is at a crossroads. Many criminal defendants tried in the presence of the electronic media have claimed that they were denied due process, yet neither the Washington courts nor the federal courts have adequately defined the standards under which these claims will be evaluated. This failure to reach a definition has left the courts unable to state why cameras will be permitted at one trial and not at another. Creating standards to determine when the presence of cameras denies a defendant due process is not an easy task. The most promising judicial approach to emerge is the "qualitative difference test." This test recognizes that the presence of cameras at a trial holds the potential to alter the conduct or outcome of a trial. This test originated in the Florida courts, and is still in its infancy. The qualitative difference test does not yet adequately define or provide a substantive standard courts can rely on to make consistent decisions. Further development is needed before a qualitative difference test can offer governing principles. This comment first reviews the federal law on the role of due process in deciding whether to allow cameras in court. The Washington and Florida experiences with cameras in the courtroom are then examined in an attempt to add substance to the constitutional threshold. By placing the entire issue in the proper context we can chart a course of action that will lead to a useful and workable resolution of lingering problems.

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277

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