BRIA 11 1 a Is a Fair Trial Possible in the Age of Mass Media?

When juries were first introduced in England about 800 years ago, most of the population lived in small villages. When people served on a jury, they would know those involved in the case and often the circumstances. In fact, for one to serve as a juror, such knowledge was required. Over time, in both England and America, this concept changed. To assure fairness, jurors were supposed to be more neutral, with little or no knowledge about the case they heard. Today, however, due to mass communications, jurors once again often know facts about criminal defendants and their alleged crimes before hearing any evidence in court.

Does this intense media coverage influence how jurors decide their verdicts? Does it prevent them from deciding cases solely from the evidence presented at trial? A recent study has concluded that "there is substantial data in this as well as other studies to demonstrate that pretrial publicity prejudices jurors and [there is] little reason to believe that this prejudice is removed before jurors hear testimony and reach verdicts." This suggests that in heavily publicized cases, jurors may ignore the basic principle of American criminal law that a person is presumed innocent until proved guilty in a court of law.

What Is An "Impartial Jury"?

How do we ensure fair trials? Do we eliminate all jurors who have heard about a case? How can we make sure a jury is impartial? Courts have grappled with these questions for years.

In 1807, Supreme Court Chief Justice John Marshall sat as the trial judge in Aaron Burr’s treason case. Newspapers covering the case had spread many stories of Burr’s guilt. Burr’s attorneys called on Marshall to exclude jurors with knowledge or opinions of the case. In ruling on this request, Marshall wrote a carefully considered, and surprisingly modern, explanation of who should and who should not serve on a jury.

Building upon earlier English law, Marshall stated that jurors should enter the courtroom with "minds open" to the testimony. They should not hold "strong and deep impressions which will close the mind against the testimony." At the same time, Marshall continued, simply having some knowledge of the case ("light impressions") would not necessarily disqualify a person from serving on a jury. Finally, Marshall cautioned judges against trusting individuals who claim they can give a fair verdict even though they hold strong opinions on the case. Such persons, said Marshall, should be questioned carefully by the judge before being accepted as jurors.

For 150 years, Chief Justice John Marshall’s words guided judges in the selection of juries. Few people questioned the discretion of judges in deciding what constituted an "impartial jury." Then, in the 1960s, a sensational murder trial resulted in new rules for judges to follow to ensure that jurors are not prejudiced by publicity before and during a trial.

When Sam Sheppard, a wealthy Cleveland doctor, was accused of murdering his wife, national press coverage became intense. During his trial, reporters, photographers, and TV cameras continually interfered with the proceedings. The trial judge did little to weed out jurors who had formed opinions from the pretrial publicity or to shield them from the media circus that took place during the trial.

Sheppard was convicted, but he eventually appealed to the U.S. Supreme Court on the grounds that he had been denied a fair trial. The Supreme Court agreed, saying that "bedlam reigned at the courthouse." The court held that when there is a "reasonable likelihood" that a fair trial will not occur, judges must take legal steps to protect their courts from outside influence. The court then listed a number of "remedies" judges could use to counter the prejudicial effects of publicity on jurors. Under these new conditions, Sheppard was retried and acquitted. [Sheppard v. Maxwell, 384 U.S. 333 (1966).] At the time of the retrial, Sam Sheppard had served 10 years in prison.

In February 2000, Sam Sheppard's son filed a lawsuit seeking a declaration of the state of Ohio’s wrongful incarceration of his father. Sheppard’s son argued that Richard Eberling, who had died in prison in early 1998 while serving time for another murder, was the person responsible for his mother’s death. A Cleveland jury decided that Sheppard’s son was unable to meet the high burden of proof required to convince the court that his father was "innocent" in addition to being "not guilty."

Do the Remedies Work?

Since the Sheppard case in 1966, judges have relied on six major remedies to combat the effects of press publicity on jurors.

1. Changes of Venue. The defendant may ask for a change of venue. If granted, the judge will remove the trial from the area where the crime took place (and where heavy press coverage has occurred) to a location in another part of the state. This may work in situations where only local interest is high, but it would not be effective in widely publicized cases such as O.J. Simpson’s. Judges rarely grant changes of venue because they are expensive to arrange and inconvenient to all those involved. Also, in large cities most judges believe they can find impartial jurors from the diverse population.

2. Continuances. When asked by the defense, judges will sometimes delay trials in order to lessen the heat of publicity on jurors. But this remedy puts a burden on witnesses whose memories may begin to fade. One recent academic study found that while jurors do tend to forget factual news accounts over time, they are apt to still remember stories with emotional content such as descriptions or pictures of mutilated victims.

3. No-Comment Rules. Judges may severely restrict what prosecution and defense attorneys may say about a case outside of court if a "substantial likelihood" exists that talking about certain kinds of information would undermine a fair trial. No-comment rules, sometimes called "gag orders," not only may clash with freedom of speech but are difficult to enforce. It’s usually extremely difficult to trace the source of information leaked to the press.

4. Voir Dire. This refers to the examination of prospective jurors by the judge and attorneys during jury selection. Judges will exclude those who have been overly influenced by pretrial publicity. In routine cases, voir dire questioning may be hasty and superficial. In high-profile cases, jurors may be required to complete lengthy written questionnaires as well as undergo extensive oral questioning. But those called for jury duty often will not publicly admit to holding prejudiced views. They also tend to underestimate the influence of the media on them. An experimental study reported in 1992 that even an extensive voir dire fails to reduce the impact of pretrial publicity on jurors.

5. Instructions. Before jurors meet to discuss a verdict, the judge will instruct them in what the law requires. In highly publicized cases, judges will often make a point of cautioning jurors to disregard anything they have heard or seen about the case outside the trial. Studies by social scientists have found that this remedy has the least effect on jurors.

6. Sequestering. In cases with a great amount of press attention, judges will frequently isolate jurors from any outside contacts. Sequestered jurors are usually housed in a hotel where they also eat their meals. They typically are forbidden to use the telephone. Newspapers, television and radio news, and even mail may be censored. Sequestering is effective once the jury is formed and the trial begins, but it does nothing to eliminate the influence of publicity that has come before the trial.

Restricting the Press

Instead of relying entirely on remedies that sometimes do not work, judges have occasionally attempted to restrict the press itself.

In 1975, Edwin Charles Simants was arrested for murdering six family members (including small children) in Sutherland, Nebraska. To counter the potential prejudicial effects of pretrial publicity, the judge issued a court order that prohibited any reporting of Simants’ statements to the police or others, including what had already been presented as evidence in pretrial hearings. Nebraska news organizations challenged this gag order arguing that it violated the First Amendment’s free-press guarantee.

In striking down the judge’s order, the Supreme Court stated that "pretrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial." The court then ruled that gag orders should only be used as a last resort after all the other traditional remedies have been tried. Finally, the Supreme Court held that anything occurring in open court is fair game for the press to report. [Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).]

In another highly publicized murder case, a Virginia judge tried a different approach to stop the publicity. At the request of the defendant, he closed the trial to the press and public. In declaring this tactic unconstitutional, the Supreme Court ruled that the press and public have a First Amendment right to attend criminal trials except in rare cases. [Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).]

So if trials can only rarely be closed, what about pretrial hearings where much evidence is discussed? Some of this evidence may be very prejudicial to the defendant and not even be admissible at the trial itself. In a California case in which the defendant was accused of administering a lethal drug overdose to 12 hospital patients, the judge closed the preliminary hearing. The judge also denied the local newspaper’s request for transcripts of the hearing. But again the Supreme Court ruled that the press and public have a right under the First Amendment to attend and read transcripts of pretrial hearings except under strictly defined conditions. [Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).]

In summary, U.S. courts have long recognized the potential dangers of publicity to criminal cases. When jurors are exposed to news reports, they may prejudge a case. In highly publicized cases, judges can use various remedies to make sure the defendant gets an impartial jury. But the Supreme Court has resisted remedies that restrict the First Amendment’s guarantees of free speech and a free press.

For Discussion and Writing

  1. What is your definition of an "impartial jury"?
  2. What remedies for securing an impartial jury do you think are the best to use when intense and widespread press coverage occurs, as in the Rodney King and O.J. Simpson cases?
  3. Do you think the press should or should not be allowed access to each of the following? Explain your answer in each instance.

    a. a pretrial hearing to decide if certain evidence is legally admissible

    b. preliminary hearing evidence consisting of photographs showing mutilated victims

    c. trial testimony of a rape victim

    d. trial testimony of a child-abuse victim

    e. sequestered jurors


What Is the Best Remedy in High-Publicity Cases?

To assure fair trials, some nations, like Great Britain, prohibit most news stories about pending or ongoing criminal trials. In the United States, the First Amendment prohibits press censorship. When publicity threatens a defendant’s right to a fair trial, courts must use remedies other than censorship to protect the defendant’s right.

In this activity, students role-play judges deciding what the best remedy is to reduce the effect of high publicity in three criminal cases.

1. Break the class into small groups. Each group will role-play judges. The judges should discuss each of the three cases below and decide on the single best remedy for each case. The remedies are; change of venue, continuance, no-comment rule, voir dire, instructions, or sequestering.

Judges should refer to the article for information on these remedies.

2. After the groups have decided on each case, discuss each case in turn with each group of judges reporting back.

3. When the activity concludes, discuss the strengths and weaknesses of each remedy.


a. Mary Smith. Smith, a world-famous singer who each year puts on a major concert to raise money for a charity, is charged with stealing large sums of money from the charity. The police and prosecution have not spoken with the press, but since Smith is a superstar, the press has spent a lot of time digging up information from other sources. The story has run in all the media throughout the country, and the trial promises to be a major media event.

b. Roger Anthony, Susan Burke, Yolanda Perkins, and Sam Samson. These four are charged with murdering 20 people in a cold-blooded shooting spree in a park. The viciousness of the crime has attracted nationwide media attention. Various stories have appeared in the media claiming that Roger Anthony manipulated the others into committing the crime. Although no source is given for these stories, many believe one of the attorneys is the source.

c. Peter Jones. Jones, a stranger to the small town of Canberry, is charged with robbing and murdering a convenience store clerk. Shocked by the brutal crime, almost everyone in the town has contributed to a fund to help the clerk’s spouse. Because of the upcoming trial, the Canberry prosecutor and police have not talked with the press. But a prosecutor from another state, where Jones is wanted for a similar crime, has spoken extensively with the media. This story has played prominently in the local media.



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