This is one of the most sensitive issues that the lawyers at my law firm have faced in the past 20 years of handling final restraining order matters here in New Jersey. Long story short, we represented the victim of domestic violence in a final restraining order hearing at the Family Part, Superior Court of New Jersey, Middlesex County. Just as the trial was about to begin, the attorney for the defendant stated that she would like to video the domestic violence trial. Of course, we immediately objected (we feared that the defendant would then place this video on the Internet in a future attempt to further harass our client) and requested a conference. Back in chambers, the judge then advised both lawyers that they had one hour “over lunch break” to research the issue and prepare their respective arguments.
At that point, myself and two of the other attorneys at my office all dove in (we practice “team work” at our law firm) to help our fellow associate attorney at the court house with research of case law, statutes and any other directives that would bolster our argument. By 1:30 p.m. that afternoon, his argument prevailed and the defendant was not allowed to video the final restraining order trial. Our client was beyond relieved.
Certainly, these situations can be extremely emotional and can have some hefty repercussions. Most people are unaware that domestic violence proceedings in general are not necessarily exempt from media access. What happens if you have a domestic violence case dealing with very real, close and sensitive personal issues? Can someone video tape or audio record this against your objection? Ordinarily speaking, most people do not have to deal with this issue, but in case you do, you should know the dynamics surrounding same. Let’s explore.
A brief background on domestic violence in general will help you better understand this issue. The Prevention of Domestic Violence Act is contained in N.J.S.A. 2C:25-17 et seq. and was designed to assure victims of domestic violence protection from abuse. A qualified victim must prove by a preponderance of the credible evidence that the defendant’s conduct constitutes one or more predicate acts as set forth in the statute and that the restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence. The commission of one of the enumerated predicate acts of domestic violence does not automatically mandate the entry of a domestic violence final restraining order. The guiding standard is whether a restraining order is necessary upon evaluation of the factors set forth in N.J.S.A. 2C:25-29.
The Supreme Court of New Jersey issued a directive that became effective a little under a year ago on February 2, 2015 entitled Supreme Court Guidelines on Electronic Devices in the Courtroom. This was the first such directive since one was issued in 2003 entitled Supreme Court Guidelines for Still and Television Camera and Audio Coverage of Proceedings in the Court of New Jersey. The new directive superseded the old one and they have a stark contrast when it comes to the area of domestic violence.
In promulgating these guidelines the Court was guided by the notion that advances in technology have provided not only traditional journalists but also members of the general public with access to a variety of easily portable electronic devices that can be used to capture news, photographs and/or video. Notebooks and sketchbooks are no longer being used by reporters and courtroom artists, as these have been replaced with smart phones and computer tablets. The Supreme Court felt that in this day and age the court should not be required to determine who qualifies as a journalist, but rather the uses to which these devices are put. Guidelines were needed to make sure that the use of these devices in and around the courthouse do not compromise fairness to litigants, efficiency in court proceedings and/or appropriate courtroom decorum.
The Guidelines define permissible use of electronic devices in courtrooms and set a prerequisite that an individual must execute an Agreement for the Use of Electronic Devices prior to being allowed to do so. These agreements expire after one (1) year from their execution. If an individual wants to electronically record, broadcast or transmit a court proceeding, they must first have a valid Agreement and then must request permission from the court in writing to do so. The court will then decide whether to approve such request within twenty four (24) hours or as soon as practical. The goal is to provide public access to the courts while ensuring fairness to litigants.
Now let’s take a look at this in the context of a domestic violence case. Interestingly, consent of the parties is not required, including that of a victim. The permission to record these proceedings are specifically not conditioned upon obtaining consent of any party, witness or attorney. However, the court is allowed to consider the views of such participants in its discretion. Generally speaking, electronic recording is prohibited at any proceeding closed by court order, statue or Rule of Court, which in general does not include domestic violence proceedings. These are basically the only exclusions to the general permission to use these devices. Interestingly, there is a stark contrast here with the Guidelines from 2003, which provided at section (c)(1) of guideline 2 that television, audio or still photography coverage is prohibited at proceedings under the Prevention of Domestic Violence Act. I have been unable to find any reason or rationale for the removal of this paragraph in the 2015 Guidelines. It is interesting to say the least, as the Court has basically opened up domestic violence proceedings in general to be electronically recorded when they used to be specifically excluded.
Importantly however, the court retained discretion to impose restrictions on the use of electronic devices in a courtroom. Electronic recordings may be excluded in any proceeding where the court determines such use would cause a substantial increase in the threat of, or the potential for, harm to a litigant, juror, witness or any other participant in the case or would otherwise unduly interfere with the integrity of the proceeding. In determining whether this exists, the court may consider the potential for intimidation of witnesses, victims and others when exercising its discretion in deciding whether to grant or deny permission.
This can become both interesting and problematic if an alleged offender of domestic violence is involved in the media by trade or profession. I had this issue come up wherein I represented a victim and her ex-boyfriend had a local online newspaper that he owned. He had a history of placing photographs of the victim on his business’ website and writing about her not only on his online newspaper, but also making comments about her to other online sources which were published. An issue than arose wherein the victim sought a restraining order against her ex-boyfriend. He promptly notified various news outlets and sought the recording of the hearing, which was problematic since there was a history of harassment related to the publication of certain things about the victim in the media.
The news source seeking to record the proceeding shall remain nameless. They nonetheless filed the appropriate Agreement and sought permission from the Court to record the final restraining order hearing. They failed to provide any notice whatsoever to the victim and she was only made aware of same moments before the hearing was to commence. The Judge held a pretrial conference on the issue of whether this electronic recording should be allowed. After much debate and argument back and forth on the issue, the Judge held that allowing a video recording of the proceeding to take place would permit and/or cause an increase of a threat or harm to the victim, especially here where the underlying allegations contained a basis for harassment related to the media. To allow such a recording would be intimidating to the victim since she already felt threatened and harassed based on the nature of the complaint. The Judge reasoned that the goal of the domestic violence act was to protect victims and because allowing a video recording might impede this goal, the court was not going to allow them to video tape same.
This was reassuring to the victim since the new Guidelines specifically removed the domestic violence proceeding exemption from it. This was a positive result as a victim of domestic violence can still prevail in having the proceedings somewhat excluded from widespread public scrutiny and broadcasted on various media outlets.
Whether a court will allow a certain media outlet access to and the right to record your domestic violence hearing will turn on the particular facts of your case, what alleged predicate act has occurred and what effect this may have on witnesses, victims, etc. As practicing New Jersey family law attorneys we deal with these types of issues on a regular basis and know how to handle these matters if they arise in your case. If you have a pending domestic violence case and need representation, do not hesitate to contact our firm to discuss your rights and how we may be able to help you with your particular situation.
If you or a loved faces a domestic violence situation, my office stands prepared to help you today.