United States District Court, Central District of Illinois, Springfield Division
January 16, 1998
UNITED STATES OF AMERICA, PLAINTIFF,
JAMES R. BERGER, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, District Judge.
The Governor's videotaped deposition.
And like any competent sequel, a little factual background
information is necessary.
Defendant has been charged with sixteen counts of mail fraud
and with one count of misapplication of government property.
During the midst of the trial, a juror became ill. Rather than
making use of the last available alternate juror, the Court and
the parties agreed to recess the trial until the juror was able
to return to Court.*fn1
A problem with this plan arose in that Defendant had
anticipated calling Illinois Governor Jim Edgar as a witness the
next day. The Governor had a long planned three week official
trade mission to India and, therefore, would only be available to
testify the following day — his final day before departure. In
order to alleviate this conflict, the parties stipulated to allow
the Governor to be deposed via videotape pursuant to Federal
Rule of Criminal Procedure 15(a) and by that means, would
preserve the Governor's deposition for use at trial at
Defendant's discretion. However, until Defendant decided to play
the videotape to the jury, the videotape was to remain in the
possession of the reporting service which had videotaped the
Governor's deposition and was to be treated as a sealed
matter.*fn2 Furthermore, members of the public were prohibited
from attending the Governor's deposition.
Although this procedure was agreeable to both the parties and
the Court, it created quite a hullabaloo with the media.
Obviously, the press believed that a sitting Governor's testimony
in a federal criminal trial carried some degree of newsworthiness
therefore, petitioned the Court to allow them to attend the
taping of the Governor's deposition in person rather than being
forced to wait until the videotape was played to the jury. The
Court denied the press' petition and ruled that the videotaping
of the Governor's deposition and the videotape itself would be a
sealed matter until the tape was actually presented as evidence
at trial before the jury. United States v. Berger, 990 F. Supp. 1051
After the taping of the Governor's deposition, the Court met
with the parties in chambers. At that meeting, the Court broached
the issue of the public's access to the transcript and videotape
should Defendant decide to offer it as evidence in his
case-in-chief. The parties and the Court agreed that once played
to the jury, both the transcript and the videotape itself would
be open to the public for inspection and copying.
Upon that backdrop, we begin the sequel.
After the trial resumed, Defendant did, in fact, decide to
offer the Governor's deposition as evidence in his case-in-chief,
and thus, it was played to the jury. During the morning break,
counsel for Defendant approached the Court and inquired as to the
Court's intentions with respect to keeping the videotape under
seal. Defendant's counsel related that the Governor's staff had
requested that the videotape be placed back under seal once it
was viewed by the jury. At a meeting in chambers, Defendant
asserted that it was also his position that the videotape be
placed back under seal once it had been presented to the jury.
Upon returning to open Court (but out of the jury's presence)
counsel for the Governor asked to be heard and moved the Court
for a protective order which placed the videotape back under seal
once it was played to the jury. Alternatively, counsel for the
Governor requested the Court to stay our ruling on the issue in
order to allow time to research the issue and file an appropriate
After weighing the competing interests and considering the
Seventh Circuit's view of the issue, the Court finds that the
public should have access to the videotape.
In reaching this conclusion, the Court is cognizant that our
decision is contrary to that reached by various Courts of
Appeal.*fn4 The Fifth, Sixth, and Eighth Circuits have all held
that the public does not have a right of access to tapes played
in court. See Belo Broadcasting Corp. v. Clark, 654 F.2d 423,
427 (5th Cir. Unit. A 1981) (holding no First Amendment right to
copy tapes where transcripts provided and tapes played in open
court); see also United States v. Beckham, 789 F.2d 401, 409
(6th Cir. 1986) (holding no constitutional right to copy tapes
played in open court); see also United States v. McDougal,
103 F.3d 651, 656 (8th Cir. 1996) (holding no common law or First
Amendment right of public access to videotape of President's
On the other hand, the Second Circuit has found that in the
absence of "extraordinary circumstances," the public has a common
law right to inspect and copy videotaped depositions used at
trial. In re Application of CBS, Inc., 828 F.2d 958, 959-60
(2nd Cir. 1987); In re Application of Nat'l Broadcasting Co.,
Inc., 635 F.2d 945, 949 (2nd Cir. 1980). Likewise, the Ninth
Circuit has held that there is a "strong presumption in favor
of copying access." Valley Broadcasting Co. v. United States
Dist. Court, 798 F.2d 1289, 1294 (9th Cir. 1986).
In the Seventh Circuit, there is also a strong presumption in
favor of public access. Grove Fresh Distributors, Inc. v.
Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994); United
States v. Guzzino, 766 F.2d 302, 304 (7th Cir. 1985); In re
Continental Illinois Securities Litigation, 732 F.2d 1302, 1313
(7th Cir. 1984); United States v. Edwards, 672 F.2d 1289, 1294
(7th Cir. 1982). "This presumption is rebuttable upon
demonstration that suppression `is essential to preserve higher
values and is narrowly tailored to serve that interest.'" Grove
Fresh Distributors, 24 F.3d at 897, quoting Press-Enterprise
Co. v. Superior Court of California, Riverside County,
464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). However, "[a]ny
doubts must be resolved in favor of disclosure." Grove Fresh
Distributors, 24 F.3d at 897; In re Continental, 732 F.2d at
In this Court's opinion, two questions must be answered in
resolving the issue at hand. First, is the videotape more akin
to a camera in the courtroom which, if the Court allowed public
access to inspect and copy the videotape, would run afoul of
Federal Rule of Criminal Procedure 53,*fn5 or is it more similar
to a piece of evidence (e.g., an audio tape) which is generally
open for public inspection once it has been admitted at trial.
Second, would Defendant suffer any prejudice if the videotape
is disclosed or is there any "higher value" than the public's
right of access which would mitigate against making the videotape
open for public inspection and copying.
The Court believes that the videotape is more akin to a
judicial record than a violation of the ban of cameras in a
federal courtroom. No one took any photographs in the courtroom;
nor did anyone broadcast live via radio or television any
judicial proceeding occurring within the courtroom. Moreover,
there was no camera or satellite feed emanating from the
courtroom either as the Governor's deposition occurred or as the
videotape was played to the jury.
On the contrary, Defendant decided to preserve the Governor's
deposition by videotaping it. The Governor's deposition differed
from the "standard" deposition (i.e., questions and answers
transcribed by a court reporter) only in its form. Video and
audio tapes are often used in both civil and criminal cases to
recreate accident scenes, preserve an expert's testimony, or
record undercover drug buys. Once these tapes are admitted into
evidence and played at trial, they are open to the public. The
Court perceives no difference in those situations and the
videotape at issue here. Thus, the Court finds that allowing
public access to the videotape of the Governor's deposition does
not run afoul of Federal Rule of Criminal Procedure 53.
As to the second issue, after much deliberation, the Court was
unable to conceive of a situation in which Defendant's
constitutional rights would be violated or lessened if the public
were given access to inspect and copy the videotape. Likewise,
the Court could not envision some "higher value" which would
rebut the strong presumption of the public's right of access.
There is no question that a written transcript of the Governor's
deposition would be made available to the public upon the
admission of his testimony before the jury. There is also little
doubt that various news organizations will purchase a copy of the
transcript and will quote from it in their news reports.
In chambers, the Court asked Defendant to articulate what
prejudice he would suffer if the public is allowed access to the
videotape. Specifically, the Court asked Defendant: assuming a
juror inadvertently sees on television a replay of the Governor's
deposition, how would he suffer any greater prejudice under that
scenario than he would if a juror inadvertently sees a picture of
the Governor on television with an excerpt of his deposition from
the transcript placed underneath the Governor's picture?*fn6
could not articulate, to the Court's satisfaction, a reason why
he would suffer prejudice if the public is given access to the
As for the Governor's request, his interest is somewhat more
clear. The Governor is concerned about possible negative
publicity, a possible distortion or misreporting of his
statements, etc. This is only natural, and the Court is fully
cognizant of such realistic concerns. However, the Seventh
Circuit has stated that such factors are irrelevant to a trial
Whether the news media would have accurately reported
or whether the public would have understood the
contents of the tapes should have been of no concern
to the trial judge. The trial judge had no duty to
assure that the news media would do its job properly
or that the public would not be misinformed. To the
contrary, assuming such a duty would greatly exceed
the function of the judiciary. The trial judge's sole
concern was with the constitutional rights of the
defendants, and upon determining that they would
suffer no prejudice from release of the tapes his
proper inquiry was at an end.
Guzzino, 766 F.2d at 304.
Furthermore, although the Court has been unable to unearth a
case from the Seventh Circuit which is on all fours with the
issue at hand, when the Seventh Circuit has tangentially or
peripherally considered the issue, that court has relied upon
case law from the Second Circuit. While stopping short of
adopting the Second Circuit's "extraordinary circumstances" test,
the Seventh Circuit has cited, with approval, language from
United States v. Myers, 635 F.2d 945 (2nd Cir. 1980). In In re
Continental Illinois Securities Litigation, the Seventh Circuit
The Second Circuit's further observation in Myers is
therefore germane to the case at hand.
Once the evidence has become known to the members
of the public, including representatives of the
press, through their attendance at a public session
of court, it would take the most extraordinary
circumstance to justify restrictions on the
opportunity of those not physically in attendance
at the courtroom to see and hear the evidence,
when it is in a form that readily permits sight
and sound reproduction.
In Matter of Continental Illinois Securities Litigation, 732
F.2d at 1313 (emphasis added). Based upon the Seventh Circuit's
language and their approval of the Second Circuit's liberal view
of public access, the Court believes that if presented with the
issue, the Seventh Circuit would err on the side of disclosure.
Accordingly, the Court believes that public access to the
videotape must be allowed.
It is also important to note that it was Defendant who
stipulated to the Governor being deposed in lieu of testifying in
person. It was Defendant who decided to take the Governor's Rule
15(a) deposition by videotape. Finally, it was Defendant who
decided to present the videotape as evidence in his case-in-chief
and to play the videotape to the jury.*fn7
Finally, Defendant and the Governor ask the Court to stay our
ruling on the release of the videotape until they have had an
opportunity to do some legal research and prepare a proper motion
on the issue. While, there may be some room for debate as to the
state of the law regarding the right of the public's access to a
videotape of a Rule 15(a) deposition, once the Court has
determined that there is a right of access, the Court's mandate
from the Seventh Circuit is clear. The Seventh Circuit dictates
that access be immediate:
In light of the values which the presumption of
access endeavors to promote, a necessary corollary to
the presumption is that once found to be appropriate,
access should be immediate and contemporaneous.
Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96
S.Ct. 2791, 49 L.Ed.2d 683 (1976); Continental
Illinois Securities Litigation, 732 F.2d at 1310.
The newsworthiness of a particular story is often
fleeting. To delay or postpone disclosure undermines
the benefit of public scrutiny and may have the same
result as complete suppression. "[E]ach passing day
may constitute a separate and cognizable infringement
of the First Amendment." Nebraska Press Ass'n v.
Stuart, 423 U.S. 1327, 1329, 96 S.Ct. 251, 254, 46
L.Ed.2d 237 (U.S. Neb. 1975).
Grove Fresh Distributors, 24 F.3d at 897.
According to the Seventh Circuit, the First Amendment presumes
a right of public access to the Court and the Court's documents.
Id. This strong presumption may only be rebutted upon a showing
that "suppression is essential to preserve higher values." Id.,
quoting Press-Enterprise, 464 U.S. at 510. Here, the Court
finds that the strong presumption has not been rebutted.
Furthermore, the Seventh Circuit has admonished that "[a]ny
doubts must be resolved in favor of disclosure." Grove Fresh
Distributors, 24 F.3d at 897. Therefore, if the Court errs, we
err on the side of disclosure.
Ergo, Defendant's oral motion to keep the videotape of the
Governor's deposition sealed and the Governor's oral motion for a
protective order are DENIED.