Let's talk about a very stupid rule of the Office of Court Administration (OCA) that prohibits still photography inside a New York State courtroom without judicial permission.

http://ww2.nycourts.gov/rules/chiefjudge/29.shtml.

/1

NY Civ. Rts. § 52, which makes it a misdemeanor to televise, broadcast, or take "motion pictures" of court proceedings where a witness testified by subpoena (or other compulsory process), doesn't apply to still photography.

/2

OCA's separate rule, though, prohibits still photography w/o judicial permission⸺& it applies to taking screenshots of a virtual courtroom.

Which has led to some interesting scenarios in the pandemic.

/3

When preliminary hrgs occurred by video for ppl detained pre-trial on felonies, some judges permitted prosecutors to conduct unduly suggestive in-court show-up IDs of the accused, over defense objection. Some judges denied requests to waive the accused's appearance by video.

/4

Defense attorneys then had to ask judicial permission to take screenshots of the suggestive in-court show-up identification procedure as it was occurring. If judges didn't grant permission, taking a screenshot to document the ID procedure would violate OCA's rule.

/5

[Aside: these in-court show-up IDs were unduly suggestive b/c the witness would point to the only person appearing by video in a jumpsuit from jail⸺the accused. The risk of mistaken identification is unacceptably high, & violates due process].

/6

Another example: Queens DA supervisors who repeatedly appeared in virtual court without facemasks on, despite being in the same room with other employees inside the Queens DA's office (part of which is inside the courthouse).

/7

When this story dropped, instead of reacting by scolding high-ranking supervisors at Queens DA for refusing to wear a facemask, some judges were more outraged that someone violated OCA's rule prohibiting still photography.

https://queenseagle.com/all/high-ranking-prosecutors-ditch-masks-in-queens-das-office

/8

There're constitutional issues. NY Civ Rts § 52 on its face prohibits recording a court proceeding where a witness is testifying under subpoena (or other compulsory process).

But it's not a crime if the witness is testifying voluntarily? Seems arbitrary & capricious to me.

/9

OCA's rule prohibiting still photography w/o judicial permission isn't quite as problematic b/c it isn't a total prohibition (reasonable time, place & manner restrictions come to mind). But judges rarely permit still photography in NY, so it's a real problem.

/10

Why is it a problem? For months, NYS courts required members of the public/press to request permission at least 24 hrs in advance of a preliminary hearing in order to attend, virtually.

/11

To this day, courts in Queens (& likely elsewhere) make defense attorneys, our clients, & others sit in virtual waiting rooms, sometimes for hours, until they're ready to call that case.

These are pretty clear violations of the open-court principle. & yet, it continues.

/12