Michigan panel calls for new rules for livestreaming court proceedings to balance privacy and transparency
Michigan has no regulations governing many aspects of publicly live-streamed court proceedings, but a panel has proposed guidelines that the state’s courts and judges should follow as they deal with the fallout from viral moments and the reduction in live-streamed proceedings in the wake of the COVID pandemic.
Cheboygan County District Court Judge Aaron Gauthier chairs the Michigan Judicial Council’s Transparency and Public Access Working Group, which in July submitted three recommendations to the Michigan Supreme Court for consideration:
• The State Court Administrator’s Office should operate its own livestream platform similar to the streaming software used by Indiana courts. • The SCAO should issue guidelines that determine what types of hearings are appropriate for livestreaming and what topics should be avoided in publicly broadcast proceedings. • The SCAO should create standards for setting software parameters, such as muting comments during livestreams and other technical issues, and establish a proposed limit on how long videos should remain available to the public.
“There’s a whole process before the Supreme Court hears recommendations, but I’m told it’s working its way through the system,” Gauthier said. “We never want to impose strict rules on judges, but these are just guidelines to help courts make livestreaming a more efficient process that balances transparency with people’s privacy.”
Jeff Getting, Kalamazoo County prosecutor and president of the Prosecuting Attorneys Association of Michigan, said some hearings should always be held in person.
“When it comes to substantive matters, we’ve run into some issues doing things remotely, and I have concerns about the conduct of some of the hearings and things that are happening that are impacting the cases,” Getting said.
“We’ve seen cases where defendants have intimidated witnesses behind closed doors,” Getting said. “Things happen behind closed doors that judges and prosecutors can’t see. Do you want a witness who has a teleprompter in front of him giving him the answers?”
Getting said most of the worst problems arose early in the process of moving to remote hearings, and he said most judges had exercised good judgment in deciding which cases should be heard remotely.
“I think the courts have found a pretty good balance now,” he said. “Over the course of a few years, these virtual platforms have become available, and judges have figured out what kinds of hearings can be done virtually and when we should require them to be in person. Remote hearings have their place, but not for factual issues.”
Gauthier said he livestreams most of his hearings. The Michigan Judicial Council’s task force has not counted how many judges choose to livestream to the public, “though I estimate it’s less than half,” he said.
“Many judges have stopped doing this for various reasons, so our group wanted to look at what recommendations we could make to normalize this and make it clear to the courts that it’s OK to do this,” Gauthier said. “There is a way to balance the need for transparency in the courtroom with respect for people’s privacy. Certain types of testimony should not be live-streamed; those that involve vulnerable witnesses or discuss financial information.
“If the Michigan judiciary operated its own livestreaming platform like Indiana does, we wouldn’t have the problems we have with livestreaming on YouTube,” he said. “As we’ve seen, people on YouTube can record videos and repost them anywhere, and we lose control over how long the video stays online.”
“In addition, YouTube has commenting and live chat features that are unsuitable for court proceedings. While you can disable them, it is a bit cumbersome and the courts have limited resources to monitor them,” the judge added.
Michigan courts began conducting video hearings from jails in the 1980s. In March 2019, the state acquired Zoom licenses for all state courts with the goal of increasing the number of virtual hearings, said John Nevin, a spokesman for the Michigan Supreme Court.
“Migrating to Zoom also allowed us to remotely manage all of the Polycom videoconferencing equipment that the State Court Administrative Office provided to the courts,” Nevin said. “Almost immediately, the courts were connected to 1,200 endpoints across the state in the first step, allowing judges and court staff to use the Polycom and Zoom tools to interact with jails, detention centers and state police for much more than just remote hearings.
“Although remote hearings were expected to play a larger role in the future, hearings at the time were at the discretion of trial court judges,” he said. “Since the pandemic began, trial courts have participated in more than 12 million hours of remote hearings, and trial court YouTube channels have nearly 400,000 subscribers.”
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