Videotaping judges’ performances brings new meaning to “in camera inspections” at Boston Municipal Court

Issue June 2006 By Andrea R. Barter, Esq.

In March 2005, Massachusetts trial courts implemented a program of videotaping judges as part of a broad, statewide program to improve judicial performance. At the time, some judges welcomed the program, but others considered it punitive or stigmatizing.

Boston Municipal Court was the designated pilot department for the taping program. One year later, all 30 judges, including BMC Chief Justice Charles R. Johnson, have been videotaped.

“Most judges report the experience was a positive one,” said Johnson. Although there was some nervousness on the part of judges about being videotaped, he said, “The program highlighted the importance of self-awareness and the reality that the perceived quality of judgment is a function of how we present in the courtroom.”

Justice Rosalind Henson Miller, BMC, Dorchester, said there was nothing unsettling about the process. “It’s not unusual to have news outlets here on a fairly regular basis; we’re always being observed by an audience — litigants, lawyers, victims — so it’s not that much different from any other day.”

According to Johnson, there have been no major revelations or instances of egregious behavior. Recommendations for improvement have focused on posture, tone of voice, general body language and eye contact. Judges have also become aware of striking a balance in the length of time they spend explaining the rationale for their judgments and how to be judicious and considerate while managing the courtroom.

Johnson believes the videotaping has caused judges to pause and be more mindful of their in-court behavior, such as what degree of activity they permit in the courtroom, how they address litigants and whether they go through papers on their desks while talking to lawyers.

Miller discovered that she has a tendency to take notes while attorneys or witnesses are talking. She said, “I’m concerned that while I’m looking down, they may think I’m not listening,” so she compensates by making more eye contact.

“There is a whole host of things a judge can do to enhance how he or she is perceived. The mere fact that the camera is there, even when it’s gone, has embedded in the judge’s mind that the in-court demeanor component of being a judge is important,” Johnson said. “Even when the camera is not there, he or she is still under constant observation by people in the courtroom. That should be a greater incentive for quality in the courtroom than the camera being there.”

Johnson pointed out that one of the ongoing criticisms of the videotaping initiative is that if a judge knows the camera is there just for that initiative, he or she may be likely to modify any negative behaviors just for that limited videotaping purpose. In response, Johnson has devised a “cross judicial observation” program that will be implemented in the BMC the first week of June. Under this program, on a rotating basis, all judges in the BMC department will be observed and act as observers of their colleagues. The judges will provide feedback to each other, with the chief justice intervening if there are any concerns.

“This would allow each judge to comment on the in-court demeanor and behavior of each other. I think there’s a certain degree of reliability and respect for that…a judge may have greater respect for comments from colleagues who are similarly situated,” said Johnson.

Miller strongly agrees. “I think cross judicial observation, in addition to what we’re doing now, is another way to try to improve ourselves,” added Miller. “What we do should be transparent; we need to articulate reasons for our decisions. Being subject to public scrutiny is good.”

Early critics of the videotaping initiative were concerned that judges wouldn’t have time to fully review and analyze the tapes, given the backlog in the courts. Johnson has no patience for that thinking. “Some things are just so important that they cannot be ignored, and judicial performance is one of them. I cannot believe we would reduce judicial oversight by using the explanation of being ‘too busy to maintain some level of judicial oversight.’ I would rather experience delayed case disposition than compromise my judicial enhancement,” he said.

Personally, Johnson felt he is now more alert to his demeanor while sitting on the bench. But he attributed this not just to the videotaping. “It didn’t just start once the cameras were in the room; it began once the judiciary started to discuss the idea of enhancement. Just the discussion of judicial enhancement has a positive effect. It helps us realize we are subject to review and observation. The key is not the specific initiative; it’s that there is an initiative at all.”

He added, “It’s not my courtroom; it’s the public’s courtroom and we are entrusted with it. As long as it remains a public courtroom, the public has a right to know what goes on there, including the judge’s behavior.”

“We are in a public business; being watched is what we do…the courtroom is an open forum; I’m not sure the camera changes that, it just makes it more available to more people. As long as the process remains dignified and noble, I don’t think the camera should be considered that much of a problem,” said Johnson.