Lecture

I. Free Press v. Fair Trial: Two Constitutional Rights in conflict

1. The First Amendment protects freedom of speech, the media’s right to cover public events of public interest
2. The Six Amendment protects the right to a fair trial by an impartial jury
3. In many situations, these two rights are in direct conflict – you often cannot have both

2. American Bar Association suggests that the following kinds of coverage probably interfere with a defendant’s right to a fair trial:

1. Confessions or stories about the confession that a defendant is said to have made, which include even alluding to the fact that there may have been a confession

1. The Fifth Amendment says a person does not have to testify against himself, so a confession given to police can be retracted and may not be legally used against the defendant at trial.

1. Stories about the defendant’s performance on a test, such as a polygraph, and about the defendant’s refusal to take such a test. It’s not permitted at trial.
2. Stories about the defendant’s past criminal record or that describe the defendant as a former convict. It’s not permitted at trial.

 

3. Stories that question the credibility of witnesses and that contain the personal feelings of witnesses about prosecutors, police, victims or judges
4. Stories about the defendant’s character, associates, and personality
5. Stories that tend to inflame the public mood against the defendant – such as editorials demanding the defendant’s arrest, asking person-on-the-street questions about guilt or innocence, television debates about a defendant’s innocence

2. How prejudicial is this kind of publicity? Hard to detail; research is inconsistent.
3. What is an impartial jury?

1. Definition established in 1850 by Chief Justice John Marshall in the trial of Aaron Burr, at which charges were made that the jury was impartial.
2. An impartial jury is one whose mind is free from the dominant influence of knowledge acquired outside the courtroom, free from strong and deep impressions that close the mind.
3. In English: an impartial juror is one includes persons who may have opinions about a case, but

1. the knowledge or opinions are not so closely held that they cannot reasonably be put aside in the face of the evidence;
2. the publicity surrounding the case is not so widespread or prejudicial as to render a potential juror’s assurances of impartiality unbelievable.

2. Remedies for impartiality: What do the courts do to protect the defendant’s right to a fair trial?

1. Voir dire.
2. Change of venue
3. Continuance.
4. Admonition
5. Sequestration.

1. Voir dire.

In the process of jury selection, each prospective juror is questioned in an effort to discover bias; it’s a big money industry to try to evaluate and predict jurors’ biases and behaviors

In some cases, the court administers a preliminary questionnaire, after which each side has the right to dismiss a juror. This is called "challenging a juror."

There are two kinds of challenges:

Challenges for cause: Just what it says; the attorney argues that there’s a good reason this person must not sit on the jury: he knows the attorneys, the defendant; or he has expressed clear, deep-seated prejudice.

Peremptory challenges: No reason. Each sides gets a set number of peremptory challenges and they can excuse a juror without telling why; even a judge can’t refuse. The number of peremptory challenges depends upon the crime, the state, and the judge.

2. Change of venue.

The judge moves the trial to another location, assuming that pretrial publicity in a particular city prohibits a fair trial.

Problems:

1. It costs a lot: witnessees, attorneys and other persons must be transported and housed while the trial takes place.
2. The defendant must surrender his/her constitutional right to a trial in the district in which the crime was committed.
3. Pretrial publicity in the new location could prohibit a fair trial, defeating the purpose.
4. Racial composition of the community can affect outcome: The Rodney King trial was moved into a nearly all-white suburb of LA and three of the four cops were acquitted, the fourth got a hung jury. When they moved it back to multiracial LA, all four were convicted of denying King his civil rights.
5. Possible to ask for a change of veniremen rather than venue – you bring in a new jury.

1. Continuance

The trial is delayed. Sometimes postponing it means that people forget or are not as interested, and publicity has faded.

Problems:

1. the defendant sacrifices his/her right to a speedy trial, during which he/she may have to spend the time in jail
2. it may not even word

1. Admonition to the jury: The judge warns the jury not to read newspapers or watch TV about the case
2. Sequestering the Jury: The jury is kept away from all outside influences to be sure it isn’t exposed to evidence or information that will not be admitted as evidence

Problems:

1. It’s expensive
2. It’s isolating for the jury; most juries controversial enough to require sequestering are long, drawn out affairs; jurors are removed from their families, jobs, etc. Most people simply can’t afford it.

2. Restrictive orders to control publicity

1. Gag orders: In the early l960s and 1970s, judges routinely issued gag orders, prohibiting participants in a case from speaking to the press.
2. Gag orders came out of the Shepard case

Details of the case:

What did the press do that was so objectionable?

3. Shepard’s conviction was overturned by the Supreme Court, which ruled that

He had been denied a fair trial because of the pretrial and trial publicity of the case.

1. The Supreme Court held the trial judge responsible for failing to protect Shepard’s rights; at a meeting after the decision was announced, a professor of law interpreted the court’s findings as saying that judges should enforce restrictive or gag orders
2. Justice Tom Clark, who wrote the opinion, disagreed; he said the court had not suggested gag orders: "I am not proposing that you jerk a newspaper reporter into the courtroom and hold him in contempt," he said. "We do not have to jeopardize freedom of the press."
3. Clark’s words were soon forgotten.
4. Two years after the Shepard case in 1966, the American Bar Association issued the Reardon Report, which proposed that trial judges use restrictive orders to control the public statements and activities of participants in a trial.
5. The Reardon Report association also suggested that judges use their contempt power to punish anyone who knowingly violated a gag order
6. Judges responded and did just that. Between 1966-1976, trial courts issued almost 175 gag orders, 39 of which prohibited the press from reporting on some aspect of a criminal case.
7. Two kinds of gag orders:

1. aimed at the press: prohibiting the media from publishing information

1. In a case called Nebraska Press Association v. Stuart, another famous murder case in North Platte, Nebraska, the court barred publication or a wide range of information he said would be prejudicial to the defendant; the Press appealed to the Supreme Court and won – all nine judges said it was unconstitutional
2. Chief Justice Warren Berger developed a three-part test to evaluate whether a gag order was constitutional:

1. Intense and pervasive publicity concerning the case is certain
2. No other alternative measure might mitigate the effects of the publicity
3. The restrictive order will effectively prevent prejudicial material from reaching potential jurors.
4. The test was strict and stringent enough that it allowed SOME gag orders in very extreme circumstances but required a high degree of proof.

1. aimed at trial participants

1. such gag orders were handed down in the civil trial of OJ Simpson and in the criminal trial of Timothy McVeigh and Terry Nichols for the Oklahoma City bombing
2. this type of gag order is typically upheld by the courts
3. The ABA has a series of rules for attorneys limiting what they can say in the context of a high profile case; many states require a "right to reply"

1. While the courts can control what jurors do DURING the trial, it is very difficult to do anything to limit them after the trial

1. serving on a high profile jury can be very lucrative and jurors are eager to sell their stories
2. the courts have found that only very specific instructions can be given, such as forbidding jurors to tell how other jurors voted – but a blanket gag order is too broad
3. The courts finally found that confidential information legally obtained by the press may be published. The two cases that set the precedent involved the name of a boy charged with murder and the names of judges charged with malfeasance.

3. Closed proceedings

Soon after the Nebraska case, judges began to close proceedings to the press. The courts had said you couldn’t stop the press from publishing, but they hadn’t said you couldn’t keep them out.

Over time, however, the courts found that there is virtually an unqualified right for any citizen, including reporters, to attend a criminal or civil trial, and there is a strong but qualified right for the press to attend most other kinds of judicial proceedings and to inspect court documents.

1. Richmond Newspapers v. Virgina – a state court ruling in a virgina criminal trial;
2. A murder case in Virginia ended in a hung jury three times; the fourth time, the state asked that the judge close the trial. Richmond newspapers appealed it up to the Supreme Court.
3. Chief Justice Burger wrote that "the trial has been open to all who cared to observe."" He left it open that trials COULD be closed but only very rarely, and he didn’t describe when or how.
4. Juvenile trials are an exception, though 20 states now open the doors to juvenile proceedings, though reporters are asked not to publish the names of young offenders.
5. Courts have ruled that it is OK to close a trial to protect the victim of a sexual assault during the victim’s testimony, during an undercover cop’s testimony.
6. Courts began to close pretrial hearings. The courts hadn’t addressed those. In the Press-Enterprise v. Riverside Superior Court, the Supreme Court found that:

1. the party seeking closure must advance an overriding interest that is likely to be harmed
2. whoever seeks closure must demonstrate that there is a "substantial probability" that this interest will be harmed if the proceeding remains open
3. the trial court must consider reasonable alternatives to closure
4. if the judge decides that closure is the only reasonable solution, the closure must be narrowly tailored to restrict no more access than necessary
5. the trial court must make adequate findings to support the closure decision.