propriety, intentionally create, or vastly increase the dissemination of, unfavorable publicity. Stated otherwise, courts may have to cope with difficulties not of their own making, in assuring a defendant his right to a fair trial, but that does not mean that courts can actively create such difficulties without doing violence to the Sixth Amendment.
The convictions of Schwartz and Jannotti are not yet final. At this stage, it would be presumptuous to suggest that, no matter what disposition is made by this Court of their post-trial motions, the possibility of a retrial is purely speculative. The tapes which were used at the Schwartz and Jannotti trial also show the defendants Johanson and Criden, whose initial trials in this district have not yet taken place. Notwithstanding the vast amount of publicity which has already been accorded this case, there remains a possibility that an untainted jury may yet be obtainable. But see Rideau v. Louisiana, 373 U.S. 723, 726, 83 S. Ct. 1417, 1419, 10 L. Ed. 2d 663 (1963). For example, while virtually all of the prospective jurors called in the Schwartz and Jannotti case had heard or read about the case, most were able to state, truthfully in my view, that their awareness of the case was somewhat vague, and that they had formed no lasting conclusions concerning the guilt or innocence of the defendants. Because of the heightened publicity which would attend broadcasting of the actual tapes, and because of the vastly enhanced impact of the tapes themselves, I believe it is much less likely that a truly impartial jury could be obtained for the Criden and Johanson trials, or for possible retrials of Schwartz and Jannotti, if disclosure were permitted at this time. See Rideau v. Louisiana, supra.
The alternatives usually suggested for dealing with this problem would, I believe, be ineffectual. Delay of the trial would not solve the problem, since the broadcasters can undoubtedly be relied upon to re-play the tapes as part of their advance coverage of such trials. A change of venue would be of dubious value, given the nationwide dissemination of the tapes.
Because release of the tapes at this time would seriously jeopardize the fair trial rights of the defendants, and because quite apart from that problem, respect for due process of law mandates that a court may not take any action which amounts to the imposition of punishment except upon final conviction, I have concluded that the tapes should not now be released to the broadcasters.
Denial of the present application is also justified for additional reasons, arising from the peculiar circumstances of this particular case, and the precise nature of the video-tape evidence. In the Myers case in the Second Circuit, it was assumed, and the preceding discussion in this case has assumed, that all of the videotape evidence sought by the broadcasters was properly admitted in evidence at the trial. Whatever may be the validity of that assumption with respect to the Myers litigation,
the admissibility of the videotapes was sharply contested at the Schwartz-Jannotti trial. I ruled that the evidence was admissible; but not only will the correctness of that ruling be subject to further challenge on appeal, but the very basis upon which I concluded that the tapes were admissible in evidence points up the inadvisability of releasing the tapes for broadcast at this time.
Surreptitiously obtained recordings of conversations would ordinarily not be admissible in evidence. They become admissible only where one of the parties to the conversation has consented to the recording. The law takes the position that, except in situations covered by a recognized privilege, when A has a conversation with B, neither party can be sure that the other will not disclose what was said. Therefore, if A has no reasonable expectation of privacy with respect to the contents of his conversation with B, the fact that B records the conversation merely ensures accuracy, and violates no right of A. See, e.g., U. S. v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971).
In the case of videotape, however, a new dimension is added. The fact that A has no reasonable expectation of privacy with regard to what he says to B does not necessarily mean that he has no expectation of privacy with respect to his appearance, demeanor, or actions, in the course of the conversation. To refine the matter still further, it can perhaps be stated that A has no reasonable expectation that B will not describe to others how A looked and what he did during the conversation; but B's description does not emanate from A; moreover, its impact is of a different order of magnitude than the actual sight of A throughout the conversation.
In the relatively small percentage of cases in which videotape evidence of actual events is presented (as distinguished from videotaped testimony of witnesses), the taped or filmed events generally occur in public places. Since no one has any reasonable expectation of privacy with respect to his appearance and actions in a public place, there is no obstacle to admissibility of the tape.
The present cases are unique in that the videotaped transactions occurred in a private place, namely, a hotel room. In ruling the tapes, with certain exceptions which will be mentioned below, admissible in evidence, I took the position that the sound portions of the tapes, which recorded the conversations between the participants, were admissible because the recording had been consented to by one of the participants. I did not interpret any of the objections raised at trial as suggesting that only the sound should have been played to the jury; moreover, the conduct of the participants in the course of their actual conversations could properly be regarded as a form of speech. There was also the argument, advanced by the Government, that an expectation of privacy with respect to occurrences in a hotel room arises only on the part of the person registered in that room; as to visitors, it was argued, there is no expectation of privacy. While I continue to believe that the rulings were correct, the issue is certainly not free from doubt.
More importantly, it was necessary at trial to excise certain portions of the taped conversations, namely, those conversations which occurred when no representative of the Government was present in the room. As to such portions of the conversation, no participant had consented to the recording.
In my view, several portions of the videotape deemed admissible at the Schwartz-Jannotti trial would not be admissible in the Criden trial. I refer in particular to the periods when Criden was alone in the room. The videotape showing Mr. Criden snooping through the contents of the undercover agent's briefcase did no harm at the Schwartz-Jannotti trial, but would be devastatingly prejudicial as evidence against Criden, notwithstanding its marginal relevance.
It should be noted that the audiotapes involved in the Watergate litigation were concededly admissible in evidence, and that the Second Circuit in the Myers case stressed the absence of objection to the evidence at trial. Both the Second Circuit and the D.C. Circuit intimated that the result might be different if there were substantial doubt as to the admissibility of the evidence sought to be copied and broadcast, and the same view is reflected in the Supreme Court's Opinion in Warner Communications, supra.
Another feature of the evidence in the present case which distinguishes it from the cited cases is that the tapes now under consideration are replete with scurrilous and libelous statements about third parties. I simply do not believe that a court should condone, much less affirmatively aid, the large-scale republication of such material.
The pendency of non-frivolous challenges to the entire prosecution as a violation of due process of law-an issue soon to be resolved in this Court but certain to be subject to appellate review-is a further factor militating against premature dissemination of the trial evidence, as is the defendants' related assertion that the tapes are misleading because they reveal only part of the story.
Finally, I suggest that the broadcasting of videotape evidence is virtually indistinguishable from televising the trial itself. Yet the televising or other broadcasting of trial proceedings in the federal courts is expressly prohibited by resolution of the Judicial Conference of the United States, most recently reiterated at the September 1980 meeting of that body. This Court is not at liberty to disregard that injunction, merely because broadcasting can be accomplished unobtrusively.
Moreover, it is not at all clear that the sole concern of the Judicial Conference is with maintaining courtroom decorum or avoiding distracting influences. Also implicated are much larger questions concerning the fundamental changes in our society wrought by technological advances in instant communication. That the marvels of the electronic age are highly beneficial should not obscure their potential for devastating encroachment upon traditional concepts of individual dignity, generally, though in my view inadequately, described as the right of privacy. Governmental intrusions upon the privacy of individuals embroiled in or affected by criminal prosecutions may be more readily acceptable when the result is the dissemination of information to a public which is limited either geographically or by interest in the subject matter, than when the result is dissemination of videotapes to a national or even worldwide public. There is, I believe, a growing public awareness that when a person becomes a totally public figure, whether through choice or involuntarily, there are trade-offs which benefit neither the public, its institutions, nor the individual.
Awareness that one is being viewed by spectators in a courtroom may not have entirely the same consequences as awareness that one is being viewed by millions of people. That difference, for witnesses, jurors, counsel and judges, may affect the integrity of the trial process, but that question is not necessarily the only concern; the greater intrusion upon privacy interests, including those of the defendant and his family, must also be considered. The Supreme Court will have occasion to address these larger issues in cases now pending for review, and it is neither necessary nor appropriate for this Court to venture further into the free press-fair trial-privacy thicket. I am, however, bound to comply with the Judicial Conference resolution. And, in my view, copying videotape evidence for public broadcast is sufficiently different from copying documentary evidence, and sufficiently analogous to permitting broadcasting of the trial itself, to warrant the conclusion that granting the broadcasters' application in this case would be contrary to that resolution.
For all of the reasons discussed above, the application of the broadcasters will be denied.