Chapter Overview

Prejudicial Crime Reporting:

The First Amendment to the U.S. Constitution guarantees freedom of the press; the Sixth Amendment guarantees every criminal defendant a fair trial. Many people believe these two amendments are in conflict because, often, publicity about a criminal case can prejudice a community against a defendant and make it impossible to find a fair and impartial jury in the case. The kinds of publicity that can be most damaging to a defendant include material about confessions or alleged confessions, stories about a past criminal record, statements about the defendant's character, and comments about the defendant's performance on scientific tests or refusal to take such tests.

Social science has not yet proved that such publicity does in fact create prejudice or that persons cannot set aside their beliefs about a case and render a verdict based on the facts presented at the trial. An impartial juror is not required to be free of all knowledge or impressions about a case; the juror must be free of deep impressions and beliefs that will not yield to the evidence that is presented in court during the trial.

Traditional Judicial Remedies:

Trial courts have many ways to compensate for the prejudicial pretrial publicity in a criminal case. Each citizen is questioned by the attorneys and the judge before being accepted as a juror. During this voir dire examination, questions can be asked of the potential jurors about the kinds of information they already know about the case. Persons who have already made up their minds about the defendant's guilt or innocence can be excluded from the jury.

Courts have the power to move a trial to a distant county to find a jury that has not been exposed to the publicity about the case that has been generated by local mass media. While such a change of venue can be costly, it can also be an effective means of compensating for sensational publicity about a case.

A trial can be delayed until the publicity about the case dies down. The defendant must waive the right to a speedy trial, but, except in highly sensational cases, granting a continuance in a trial can thwart the impact of the massive publicity often generated in the wake of a serious crime.

Jurors are always admonished by the judge to base their decision on the facts presented in court and not to read or view any news stories about the case while they are on the jury. There is evidence that they take these warnings quite seriously.

In important cases it is always possible to seclude, or sequester, the jury after it is chosen to shield it from publicity about the trial.

Restrictive Orders to Control Publicity:

In some instances trial courts have attempted to limit the publication of prejudicial information about a case by issuing court orders restricting what the press may publish or what the trial participants may publicly say about a case. These restrictive orders grew out of a famous U.S. Supreme Court decision in the mid-1960s that ruled a trial judge is responsible for controlling the publicity about a case.

In 1976 the Supreme Court ruled that the press may not be prohibited from publishing information it has legally obtained about a criminal case unless these conditions are met:

1. Intense and pervasive publicity about the case is certain.
2. No other reasonable alternative is likely to mitigate the effects of the pretrial publicity.
3. The restrictive order will prevent prejudicial material from reaching the jurors.

In two subsequent rulings the high court reaffirmed its 1976 decision that confidential information legally obtained by the press may be published. These cases involved the name of a juvenile suspect in a murder case and the names of judges whose conduct had been reviewed by a confidential state judicial commission.

Although judges may still limit what trial participants say publicly about a case, even these restrictive orders have come under constitutional scrutiny in recent years.