Pretrial Publicity Essays

One of the hallmarks of a civilized political system is respect for the right of a fair trial. In the United States, the right to a trial by jury in criminal cases is regarded as fundamental to the American scheme of justice. If defendants are to receive a fair trial, assessments of their guilt or innocence should be decided in the confines of a controlled courtroom by an impartial jury, uncontaminated by the frenzy of a sensationalistic press barrage.

Although our system of criminal justice has many significant deficiencies, the overwhelming majority of criminal defendants who go to trial are tried by a jury that has not been contaminated by pre-trial publicity. Their stories are not sufficiently newsworthy to garner press attention. But some defendants are not so lucky. In their circumstances, the press is eager to publish all the evidence they can find without regard to the effects on prospective jurors.

Even in small town Ithaca, N.Y. where I live, there are sensational cases in which the risks that a jury has been contaminated are all too real. For example, this morning the Ithaca Journal reports on an arrest for murder in my neighborhood, and dutifully repeats statements from the police that the defendant made incriminating statements to a friend and confessed to the police. See here. As is too often the case, right from the start, the defendant is being tried in the press.

Some argue that searching questions of jurors can cure pre-trial publicity. If you believe that I have a bridge to sell you. Many jurors lie to get on juries, and many lie to stay off juries. Sometimes jurors maintain they have heard no publicity about a case only to remember later that they had heard damaging information about the defendant.

So what to do? One possibility, of course, is to gag the press. This is commonly done in England and Germany -- in one case to protect the right to a fair trial, in the other to protect the dignity of the accused who is presumed to be innocent. In the U.S., however, even if such restrictions could get through the legislative process, a court challenge on free press grounds would be immediately successful.

But there is another way. In virtually all jurisdictions, attorneys involved in criminal prosecutions are prohibited from making particular kinds of public or private statements outside the judicial process. For example, in New York, such attorneys are not permitted to comment in ways that cast doubt on the character, credibility or reputation of a suspect in a criminal investigation and they are not permitted to reveal the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission or statement given by a defendant or suspect, or that person's refusal or failure to make a statement, or the performance or results of any examination or test, or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented. They are not even permitted to express any opinion as to the guilt or innocence of a defendant or suspect in a criminal matter that could result in incarceration. See New York Rules of Professional Conduct, Rule 3.6.

The purpose of these rules, of course, is avoid contaminating the jury pool and to promote a trial by an impartial jury rather than by a raft of sensational publicity. But these rules are ineffective. Why? They do not work because police officers are not lawyers and they are not bound by these rules of professional responsibility. So the police commonly feed incriminating information to the press, and the cycle of adverse pre-trial publicity is commonplace.

This suggests an obvious solution: place the same restrictions on police that are placed on lawyers. This would not prevent the police from informing reporters that a suspect had been apprehended, the name of the suspect and other information about him or her. Of course, the police could indicate the nature of the charges that would be brought and matters of public record. But police could not give incriminating information to the press. When police are permitted casually to release incriminating information to the press, we may enjoy the gossip, but we cannot responsibly claim we treat defendants fairly. To put it another way, if fair trials are the hallmark of a civilized society, we do not live in a civilized society.

Follow Steven Shiffrin on Twitter: www.twitter.com/SteveShiffrin

Trial courts sometimes attempt to limit access and reporting on pretrial court matters out of a concern that the pretrial publicity will affect the defendants' right to a fair trial.  These court-ordered restrictions can range from outright bans on media reporting to gag orders on the trial participants to the closing of courtroom proceedings and records. 

As addressed in other sections, the specific type of restriction ordered by the court may affect its legality.  But regardless of the type of restriction, to the extent that the justification for the restriction is a concern over ensuring a fair trial, appellate court decisions make clear that, although it is possible for pretrial publicity to affect a fair trial, such an outcome is unlikely, and quite rare. 

“Prominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance,” Supreme Court Justice Ruth Bader Ginsburg wrote in the 2010 opinion in Skilling v. United States.  The Skilling case involved a challenge by Jeffrey Skilling, the former CEO of Enron, to his criminal conviction on various charges related to his actions with the company.  Skilling argued that he was unable to receive a fair trial in his hometown of Houston. The high court ruled Skilling's trial had been fair, but sent the case back to a lower court for further analysis on an unrelated issue. 

In ruling that Skilling received a fair trial, the Supreme Court was quick to point out that past cases showed that pretrial publicity, even if it is pervasive and adverse, does not inevitably lead to an unfair trial. Furthermore, the court said that Skilling’s case shared little in common with the few cases where a transfer of venue had been warranted, which tended to involve murder trials, small towns, published confessions of guilt, or media coverage that resulted in a “carnival atmosphere” at trial.

“270ews stories about Enron did not present the kind of vivid, unforgettable information we have recognized as particularly likely to produce prejudice, and Houston’s size and diversity diluted the media’s impact,” the court wrote.

The high court has emphasized that concerns about pretrial publicity can often be addressed through the jury selection process. Courts and attorneys can typically ensure that the jury panel is comprised of jurors who are not biased through this screening mechanism.  "Through voir dire, cumbersome as it is in some circumstances, a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict," the Supreme Court stated in the 1986 case of Press-Enterprise v. Superior Court ("Press-Enterprise II").  The Court reiterated this point in its recent Skilling opinion, ruling that "[i]Inspection of the questionnaires and voir dire of the individuals who actually served as jurors satisfies us that, notwithstanding the flaws Skilling lists, the selection process successfully secured jurors who were largely untouched by Enron’s collapse.”

For more on the Skilling case, see our News Media & The Law articles from Winter 2010 and Summer 2010.

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