Criminal defense attorney and former Kings County felony prosecutor
“Hey Fast, nice picture of you in Newsday.” Some days, this is how my day starts. Despite my best efforts, in New York state court, media outlets can get permission from the Judge to videotape or photograph criminal proceedings. In high-profile cases, media coverage becomes part of the case itself and part of our everyday lives as defense counsel.
Media Access in Federal Court
Frequently, reporters are stationed outside the courthouse, especially in federal court matters. In federal court, cameras are not allowed inside the courtroom because of Federal Rule of Criminal Procedure 53. It states, “[e]xcept as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Thus, the importance of sketch photographers.
Media Access in New York State Court
New York Courts’ Presumption of Public Access
In New York State Courts, there is a strong presumption of public access. Practically speaking, that means it is very tough to persuade a judge to keep reporters or news outlets out of the courtroom.
New York Criminal Courtrooms Are Presumptively Open
New York starts with a strong presumption that court proceedings will be public. Judiciary Law § 4 mandates that proceedings in New York courts generally must be public. Courtroom closures are rare and must be supported by a compelling reason. New York defense attorneys cannot ordinarily close a criminal courtroom merely because the public proceedings are damaging or embarrassing.
What Must a New York Defense Lawyer Establish To Close the Courtroom?
In order to close the courtroom, a New York Judge must find that there is a substantial probability that the publicity would prejudice the defendant’s right to a fair trial and that no lesser reasonable alternatives exist. It is the defendant’s burden to establish this “substantial probability.” Defense generally has to explain the “particular harm” that will happen if the courtroom is not closed.
The Waller Four-Part Test
New York uses the four-part constitutional test from Waller v. Georgia for closing the courtroom, which looks at whether:
- There is an overriding interest that is likely to be prejudiced if the courtroom remains open;
- The courtroom closure is no broader than necessary to protect that interest;
- The court has considered reasonable alternatives to closure; and
- The court makes specific findings on the record to support the closure of the courtroom.
It is the Defendant’s burden of proof under the Waller four-part test to establish that the courtroom should be closed.
Reporters in the Courtroom and Cameras in the Courtroom Are Not the Same Thing
There is another distinction that is frequently missed.
Allowing a reporter to sit in the courtroom is different from allowing a television camera to record the proceeding.
There is also a difference between a news reporter sitting in the courtroom taking notes and permitting video or still photography of the proceedings. While many states broadcast criminal proceedings, New York is much more restrictive. Civil Rights Law § 52 prohibits televising, broadcasting, or taking motion pictures of proceedings in which compelled witness testimony is or may be taken.
22 NYRR Part 131 sets forth the regulations governing audio and video coverage of court proceedings. Audio-Visual Coverage Of Judicial Proceedings prohibits the recording or broadcasting of witness testimony, while giving the judge discretion to determine whether other portions of a proceeding may be photographed, recorded, or broadcast and what restrictions should apply.
How a New York Judge Decides a Media Coverage Application in a Criminal Case
When a news organization asks to photograph, record, or broadcast a criminal court proceeding in New York, the request is not automatically granted. The application goes to the judge presiding over the case, who must decide both whether coverage is legally permitted and whether it can occur without interfering with the fairness or orderly administration of the proceeding.
How the Media Makes the Application
Under Part 131 of the Rules of the Chief Administrator, the media may apply orally or in writing. Once the request is made, the judge may consult with the news organization and must consider the concerns of counsel for the parties. Defense counsel and the prosecution are expected to identify objections not only on behalf of their clients, but also concerns raised by prospective witnesses and victims. The judge may also consider written statements or affidavits and, where appropriate, hear directly from an objecting party, victim, child, or other affected person. Consent of the parties ordinarily is not required.
What the Judge Must Consider
The judge then weighs the circumstances of the particular case. Among other things, the court must consider the nature of the proceeding, whether coverage could harm a participant, whether it could interfere with a fair trial or the rights of the parties, whether it could affect law-enforcement activity, the nature of the allegations, objections raised by participants or victims, practical courtroom concerns, and whether coverage is otherwise prohibited by law. If a child is involved, the rules require the court to give that fact great weight.
Statutory Limits on Audio-Visual Coverage
There are also important statutory limits. New York Civil Rights Law § 52 generally prohibits audio-visual coverage of proceedings in which subpoenaed or otherwise compelled witness testimony is or may be taken. Part 131 separately prohibits coverage of party or witness testimony, subject to limited exceptions, and contains additional protections for jurors, sex-offense victims, suppression hearings, confidential attorney conferences, and proceedings that are closed to the public.
The Judge Can Impose Narrower Restrictions
The court does not face an all-or-nothing choice. Before denying coverage outright, the judge must consider whether narrower restrictions would adequately address the problem. The court may permit only certain portions of the proceeding to be recorded, prohibit video while permitting some other form of coverage, require delayed broadcast, or impose other restrictions tailored to the particular risk.
How the Judge Rules on the Application
After completing that review, the judge must rule as soon as practicable, either in writing or on the record in open court. The application may be granted, denied, or granted only in part. If restrictions are imposed, they must be included in the order. And unless the application is granted in full without objection from a party or victim, the court must state the basis for its decision.
What Happens If Media Coverage Is Approved
If coverage is approved, the process does not end there. Before cameras or recording equipment may be used, the judge must conduct a conference with counsel and the participating media to address outstanding objections, define what may be covered, establish where equipment and personnel may be located, and specify the restrictions that will govern the coverage. The judge retains continuing authority throughout the proceeding to narrow, modify, or revoke permission if circumstances change.
Media Applications for Still Photography or Video
Generally speaking, the argument to keep photography or video out of the courtroom is stronger at the beginning of the case rather than at the end. That is because at the beginning of the case and prior to a plea, the identity of the wrongdoer has not been definitively established. Similarly, prior to a guilty plea, the presumption of innocence applies. This is different from sentencing or post-sentencing proceedings, where the client has either entered a guilty plea or was found guilty by a jury.
Issues with Media Coverage on New York Criminal Cases
Media coverage early in the case associates the Client’s photo with the allegations against them, or states the allegations against them as facts. Despite the usual warning about the “presumption of innocence,” the jury pool generally associates the client’s image with the allegations against them and sees news coverage as established facts, even if the case goes to trial a few years later. There is no practical way to put the image back into the proverbial box. Similarly, throughout the case, defense may be successful in limiting prejudicial evidence or getting some evidence suppressed, greatly changing the scope of the case. Initial allegations that were reported on similarly cannot be undone, despite the Court’s rulings.
Why the Argument for Limiting Media Coverage Inside the Courtroom Can Be Stronger Early in the Case
There is a meaningful difference between asking that the Client’s image not be broadcast from inside the Courtroom at the beginning of a criminal prosecution, i.e. arraignment, and asking for the same restriction after the case has already resulted in a conviction, whether by trial or by a plea.
Before a conviction, whether by trial or by plea, the defendant is presumed innocent. The allegations are unproven and the Government has not carried its burden on the case beyond a reasonable doubt. That matters. The argument to the judge is stronger, especially if identity is at issue, that permitting photography of the client inside the courtroom may result in a substantial probability of prejudice to the client in receiving a fair trial.
Those arguments become harder to make once the fact-finding process is over.
Why Limiting Press or Public Access in New York Courts Is Difficult After a Conviction
By the time a case reaches sentencing after a guilty plea or trial verdict, the client’s guilt has already been established. That changes the judge’s analysis for limiting photography inside the courtroom, as sentencing proceedings have historically been open.
For example, in People v. Jocelyn D., 2026 NY Slip Op 26126, Hon. Judge Riviezzo’s August 7, 2026 decision out of Kings County Supreme Court – Criminal Term, the defendant sought closure of a post-judgment resentencing proceeding. The court held that the public’s First Amendment right of access applied and rejected closure of the Courtroom. Even the proposal to close the courtroom only during the defendant’s testimony was denied.
That does not mean a defense lawyer should simply give up when sensitive information will be discussed at sentencing.
The Defense Lawyer’s Role When the Media Is Watching
In a high-profile criminal case, dealing with the media is sometimes part of defending the case. The issue is not simply whether a reporter is sitting in the courtroom. Defense counsel has to consider whether photography, video, or other coverage could affect identification, the potential jury pool, witnesses, the client’s reputation, or ultimately the client’s ability to receive a fair trial.
Those arguments are often strongest at the beginning of the case, while the allegations remain unproven and the presumption of innocence still controls. Later in the case, particularly after a guilty plea or verdict, keeping the courtroom or cameras out becomes considerably more difficult.
The practical reality is that once a client’s photograph and the allegations against them are repeatedly published together, there is often no meaningful way to undo that association. For that reason, when media coverage becomes an issue, defense counsel should address it early and distinguish carefully between public access to the courtroom and permission to photograph or broadcast what happens inside it.
High-profile cases are part of our practice at The Fast Law Firm. You can also review the Firm’s press coverage and media features.