The other night on TV, I saw an actual jury deliberating in a real case. It happened in an Arizona court that allowed discreetly placed cameras and microphones to record "the secret world of jury deliberations," as they were described on the court's Web site.
Drastically edited (three days down to 15 minutes), the deliberations were a dramatic highlight in each episode of State V., an ABC series, produced by the news division, that aired nationwide for five weeks this summer.
As an old trial lawyer, criminal procedure teacher and lover of the American jury, I worry about cameras in the jury room. Recording deliberations could change the nature of the jury in unpredictable and perhaps unconstitutional ways.
And while post-verdict interviews of individual jurors by the media and others are also problematic, filming the deliberations as they occur _ and then airing them on nationwide TV for entertainment purposes _ raises these concerns to a new level.
The Bill of Rights guarantees that a group of ordinary citizens stands between the state and a criminal defendant. The resulting system is far from perfect, and any particular jury's mistakes are all too visible.
Yet most people who have experienced juries directly, and most scholars who have studied the institution, believe in the jury system. They see it not only as a historic symbol of democracy but also as a practical institution that performs its job well.
But to function in its intermediary role, a jury must be completely independent: of the state, of the parties and of the community itself. It comes together as a group of strangers, ignorant of the case and its participants. It meets only on this one matter, never to be officially reconstituted, and it will never be held accountable for its verdict.
An equally important aspect of the jury's independence is that it deliberates in secret and need not defend or justify the process by which it reaches its decision.
Even in our open society, confidentiality is sometimes necessary for a full airing of the issues. We would not think of filming the justices of the Supreme Court in conference, for instance, or a legislative strategy session hammering out a compromise.
In such settings, the participants need the freedom to try out positions and to reveal their uncertainties _ both of which are much less likely to happen in front of a camera.
Moreover, many potential jurors may not want to serve if there is a chance their deliberations could be made public. After all, jury service is by definition an unfamiliar task, fraught with the possibility of mistakes.
No one would want to look stupid or say something unpopular on national television; many prospective jurors would see the possibility of becoming public figures, if only for a short while, as yet another reason not to serve. There are too many of these reasons already, including the inadequate compensation and hard work involved.
Of course, jurors may consent to cameras in the jury room, as they did in Arizona. But they cannot anticipate all the consequences of recording their work on videotape. Before long, for example, defense lawyers will seek the tape of the whole deliberation, to raise issues about jury errors.
Against these considerations is the view that democratic government should be open and that seeing juries in action would be educational. Yet, as other courtroom TV programs demonstrate _ not just trials shown on Court TV, but "reality TV" shows that reveal conversations between lawyers and witnesses _ it is possible to educate the public without showing jury deliberations.
Finally, there is the argument that the chance to be on TV might actually attract some people to jury service, though whether this attraction is beneficial to the judicial system is debatable.
In the 1950s a nationwide outcry followed the revelation that legal scholars had (with judicial permission) recorded juries in six civil cases for an academic study. In the controversy's aftermath, Congress passed a law making it a crime for "anyone to record, listen to, or observe" jury deliberations in federal courts.
The episode revealed a deeply shared belief that no one, even with the best intentions, should invade the jury's sanctum. Whether that consensus still exists is hard to say.
But I think it is worth asking ourselves whether we want to risk damage to one of this country's most sacred democratic institutions for the sake of a few weeks' summer entertainment.
Barbara A. Babcock is a professor at Stanford Law School.
New York Times