Mass Media Law18th Edition

Don Pember

Clay Calvert

Chapter 11Free Press–Fair Trial:

Trial-Level Remedies and Restrictive OrdersMcGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.

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Prejudicial Crime Reporting

Crime Stories That Can Endanger Defendants’ Rights:

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

2. Stories about the defendant’s performance on a test, such as a polygraph

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Prejudicial Crime Reporting

Crime Stories That Can Endanger Defendants’ Rights:

3. Stories about the defendant’s past criminal record

4. Stories that question the credibility of witnesses

5. Stories about the defendant’s character, associates or personality

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Prejudicial Crime Reporting

Crime Stories That Can Endanger Defendants’ Rights:

6. Stories that tend to inflame the public mood against the defendant

7. Stories that are published or broadcast before a trial and suggest, imply or declare the defendant is guilty

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Prejudicial Crime Reporting

Impact on Jurors– Intensive press coverage of a case might jeopardize

the rights of a defendant, but research has not yet proven:

• Publicity creates prejudice against a defendant• Jurors cannot set aside their beliefs about a case

and render a verdict based solely on facts presented in court

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Prejudicial Crime Reporting

The Law and Prejudicial News– An impartial juror:

• Must be free of deep impressions and beliefs that will not yield to the evidence that is presented during the trial (U.S. v. Burr, 1807)

• “…need not…be totally ignorant of the facts and issues involved” (Murphy v. Florida, 1975)

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Prejudicial Crime Reporting

The Law and Prejudicial News– An impartial juror:

• Cannot hold “such a fixed opinion they could not judge impartially the guilt of the defendant” (Patton v. Yount, 1984)

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The Law and Prejudicial News

An Impartial Juror– The high court is willing to permit jury service

by a person who possesses knowledge or has an opinion about a case, so long as:1. The knowledge or opinions are not so closely held

that they cannot reasonably be put aside in face of evidence; and

2. The publicity surrounding the case is not so widespread and prejudicial as to render a potential juror’s assurances of impartiality as unbelievable

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Prejudicial Crime Reporting

The Law and Prejudicial News– The high court is willing to permit jury service by a

person who possesses knowledge or has an opinion about a case, so long as:

1. The knowledge or opinions are not so closely held that they cannot reasonably be put aside in face of evidence; and

2. The publicity surrounding the case is not so widespread and prejudicial as to render a potential juror’s assurances of impartiality as unbelievable

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Traditional Judicial Remedies

Trial Level Remedies for Pretrial Publicity:

1. Voir dire

2. Change of venue

3. Change of veniremen

4. Continuance

5. Admonition

6. Sequestration

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Traditional Judicial Remedies

Voir Dire – Each perspective juror is questioned prior to being

impaneled in an effort to discover bias– Challenges for cause - when an attorney convinces

the court that there is a good reason a potential jury member should not hear the case

– Preemptory challenges - a limited number of challenges granted without need to prove cause for removal of a jury member

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Traditional Judicial Remedies

Change of Venue – When a judge orders a trial moved to a distant county

to find a jury that has not been exposed to publicity about a case

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Traditional Judicial Remedies

Change of Venue – If a change of venue is ordered:

• All of the participants—prosecutor, defense attorney, judge, defendant, witnesses and others—will go to the new location

• The jury will be selected from members of the new community

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Traditional Judicial Remedies

Change of Veniremen – When the court imports a jury panel from a distant

community

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Traditional Judicial Remedies

Continuance – When a judge postpones a trial for weeks or months– A continuance may be granted when a judge expects

people in the community will forget at least some of the publicity surrounding the case

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Traditional Judicial Remedies

Admonition to the Jury – When judges tell impaneled juries they must render

their verdict solely on the basis of the evidence presented in the courtroom

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Traditional Judicial Remedies

Sequestration of the Jury – When jury members are sequestered, they:

• Live in a hotel and eat all meals together, and• Are denied access to media accounts and

personal communication about the trial

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Restrictive Orders to Control Publicity

– Judges issue restrictive orders, also known as “gag orders” to stop those involved in a case from making public comments

– Restrictive orders can limit what parties can say, when they can sit, and whom they can speak

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Restrictive Orders to Control Publicity

– Restrictive Orders can be issued to: • The plaintiff and defendant• The attorneys• The press

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Restrictive Orders

Restrictive Orders Aimed at the Press– Nebraska Press Association v. Stuart (1976)

• The judge in a sensational murder trial issued a restrictive order barring the printing or broadcasting of material about the victims

• U.S. Supreme Court ruled this order was an unconstitutional prior restraint on the press; there must be a clear and present danger to the defendant’s rights to issue such an order

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Restrictive Orders to Control Publicity

Restrictive Orders Aimed at the Press– Nebraska Press Association Test for Restrictive Orders

Aimed at the Press:1. There must be intense and pervasive publicity about the case2. No other alternative measure might mitigate the effects of the

pretrial publicity3. The restrictive order will in fact effectively prevent prejudicial

publicity form reaching potential jurors

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Restrictive Orders to Control PublicityRestrictive Orders Aimed at the Press

– The U.S. Supreme Court ruled that confidential information about a trial that was legally obtained by the press may be published

• Landmark Communications v. Virginia (1978)• Smith v. Daily Mail Publishing Co. (1979)

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Restrictive Orders to Control PublicityRestrictive Orders Aimed at the Press

– The number of restrictive orders aimed at the press has dwindled substantially during the past three decades as a result of the Nebraska Press Assn., Landmark, and Smith cases

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Restrictive Orders to Control PublicityRestrictive Orders Aimed at Trial Participants

– More likely in high profile cases– The law regarding restrictive orders barring

participants from speaking or publishing about a case, however, is still developing

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Restrictive Orders to Control PublicityRestrictive Orders Aimed at Participants

– Lawyers may be barred under court rules or codes of conduct from making extrajudicial comments on a case, whether or not a restrictive order has been issued

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Restrictive Orders to Control PublicityRestrictive Orders Aimed at Participants

– Judges can bar jurors from speaking to the press while the trial is in progress or while jury deliberations are still ongoing

– Courts have also tried to limit communication between jurors and the press following trials