This Article pays long-overdue attention to a federal appellate court's warning against "playing hide-and-seek" with witnesses. Specifically, prosecutors should record interviews. While courtroom cameras dominate the topic of judicial transparency, cameras can play a critical role in a sleepier corner of criminal proceedings: pretrial witness interviews. The Article first tracks the history of open judicial proceedings as a tradition of our Anglo- American jurisprudence. Next, the Article identifies the normative thread running through that history. Fairness may suffer when cameras transform public proceedings into publicized proceedings. Finally, the Article argues that this same issue of fairness applies to pretrial witness interviews. While fairness provides a reason against proceedings that are overly publicized, it provides a reason for interviews that are more public. Judicial proceedings are designed to ascertain the truth; hidden off camera, witness interviews may obscure the truth. Recording witness interviews would lift those interviews on a par with other discovery aspects of a criminal proceeding and put a welcome end to games of witness hide-and-seek.
Christina Frohock and Jeffrey E. Marcus, Witness Hide-and-Seek: Why Federal Prosecutors Should Record Pretrial Interviews, 53 Seton Hall L. Rev. 743 (2023).