The Use of Recording Devices in Court

Directive 08-14: Use of Cameras, Electronic Devices, and Recording Devices in Court

For many years, guidance regarding the use of cameras, electronic devices, and recording devices has been found in New Jersey Code of Judicial Conduct, Canon 3A(9), which provides that: “Only media representatives with bona fide press credentials or with identification issued by a bona fide media outlet are permitted to provide live broadcasts and/or to electronically record or photograph court proceedings.”

Today, however, the use of electronic devices is so commonplace that students are allowed to bring “smart” phones into school, legislatures are continuing to crack down on talking or texting while driving, and almost every citizen carries a recording and camera device that just so happens to also make phone calls. Meanwhile, traditional journalism is being challenged by the rise of bloggers and other “new” forms of journalism. In this environment, Directive 08-14 (Supreme Court Guidelines on Electronic Devices in the Courtroom) was born. This Directive went into effect February 2, 2015 and has been applied to virtually every Court in New Jersey (although the Directive does not appear to include administrative and quasi-judicial proceedings).

In sum, the Supreme Court Guidelines state that due to the pervasiveness of electronic devices and the rise of non-traditional reporting, that the issue of the use of electronic devices in courts must be revisited. The Directive addresses use of cameras inside courtrooms, in common areas of courthouses, and on courthouse grounds.

Firstly, the new guidelines no longer require the showing of press credentials, but rather set as a prerequisite for any such use that individuals execute: “An Agreement for the Use of Electronic Devices.” The Directive further states that: “With a valid Agreement, an individual may use an electronic device inside a courtroom to take notes and receive information and communications without further approval being required.”

It should be noted that there is a distinction between use of electronic devices for communications or note-taking versus utilizing such devices to record or create images. In order to photograph, electronically, record, broadcast, and/or transmit a court proceeding, an individual must first have a valid Agreement and then must “in writing request permission from the court to do so.”

Courts have been directed to make decisions regarding such requests within 24 hours or “as soon as practicable based on several factors.” A signed Agreement is valid for one (1) year. In addition, the court may at any time prohibit or restrict the use of electronic devices (even for notes) if such use interferes with: “The administration of justice, poses a threat to safety or security, or compromises the integrity of the proceedings.” The form of request for recording must be signed and in writing. The Court may consider, but is not bound by the wishes of the parties. This should be kept in mind for instances where you represent a client who seeks to object to recordings or photographs of court proceedings by third parties.

Regarding the use of electronic devices for “courthouse grounds”, “environs,” and “ceremonies,” such recordings are permitted provided individuals seek: “appropriate approval from facility security authorities and/or the owner of such facility before doing so, including, but not limited to, the county sheriff’s department.”

The Directive does provide for limited exceptions to these general rules. Such exceptions include photographs, electronic records, broadcasts and/or transmissions of victims of crime under 18 years of age, jurors (except discharged jurors), witnesses under 14 years of age, conferences between client and attorney, between co-counsel, and side bar conferences between counsel and the court (although still photographs and silent video of such conferences are permitted).

Photography, electronic recordings, broadcasting, and/or transmitting are also prohibited at any proceeding closed by court order, statute or rule of Court. Finally, an Agreement for the use of electronic devices and/or a Request for Permission shall not be required in the case of adoptive parents and other family members present at final hearings in uncontested adoption cases, provided that the judge presiding over that hearing grants those individuals permission to photograph, electronically record, broadcast and/or transmit the hearing.

This new Directive relaxes court rules regarding electronic devices. On a practical level this Directive will make it easier for members of the bar to utilize electric devices while in court. This Directive will also make it easier for non-traditional journalists to photograph or record court proceedings. For those elected, appointed, or employed by local governments, it is important to note that this directive does not apply to your meetings.  However, you may wish to have a quick discussion (or have your municipal attorney) reach out to the municipal judge in your township to discuss compliance with this relatively new directive.