New law to curb witness intimidation in Pa. is criticized by watchdogs

Two days after Christmas, 27-year-old Monae Woods sat in a courtroom in Lancaster during a preliminary hearing for a defendant charged with attempted homicide.

Woods recorded a video and, at some point, uploaded two clips to Facebook, according to the Lancaster County district attorney’s office. Under a Pennsylvania law that took effect only a few days before that hearing, Woods’ actions constituted a misdemeanor offense.

Gov. Tom Wolf signed Act 49, which prohibits the “unlawful use of an audio or video device in court,” into law last year — adding criminal penalties to an existing statute prohibiting recording in Pennsylvania courtrooms. The new law aims to prevent the spread of information that could be used to intimidate witnesses. However, its broad wording has constitutional watchdog groups paying attention.

Attempts to reach Woods at the phone number associated with her address were unsuccessful. She faces a second-degree misdemeanor charge, which carries maximum penalties of two years in prison and a $5,000 fine for a first offense.

She posted recordings of the defendant and an attorney, according to Brett Hambright, spokesman for the Lancaster County district attorney. A detective on the case found them on her social media.

“The intent is not to limit what reporters do in court, the intent is for the players involved in the case to know that they’re not broadcast to the public,” said Hambright. Cell phone recordings have been made during Lancaster court proceedings before, he said, in spite of the earlier law forbidding them.

It is unclear if Lancaster is the first jurisdiction to file charges under the statute. Representatives from district attorney offices in the Philadelphia region, as well as Allegheny County, said they were not aware of cases where the law has been applied.

State Rep. Jerry Knowles, R-Schuylkill, who sponsored the act, said in a statement he was responding to concerns raised by a judge.

“Spectators have incessantly used their cell phones and other electronic devices to take defamatory photos or videos of defendants or witnesses to post on social media” in the judge’s court, said Knowles. “What’s even more surprising is that existing law [did] not sufficiently address this very serious obstruction in the administration of justice.”

Critics of the law, including the American Civil Liberties Union of Pennsylvania, have called it redundant, “excessively broad,” and potentially unconstitutional.

“This is an ongoing concern for the Pennsylvania NewsMedia Association because this law could be applied to journalists,” said Holly Lubart, its director of government affairs.

Others raised concerns about its effect on the overall transparency of Pennsylvania’s criminal justice system.

“When you have a ban like this that doesn’t just prohibit recording but makes it illegal to record, you make it a lot harder for the public to know what’s going on in their criminal justice system,” said Nicolas Riley, an attorney with the Institute for Constitutional Advocacy and Protection at Georgetown University.

Woods’ preliminary hearing is set for March 1.