Chapters 11-12 Free Press/Fair Trial

Sixth Amendment - "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...

 

 

The First Amendment may conflict with the Sixth
Pre-trial publicity has the potential to prejudice jury members
ex. stories about "confessions," lie detector tests, past criminal records, witness credibility, statements about the defendant's character or guilt/innocence, etc.

 

 

What is an impartial juror?
Justice Marshall (1807) - one free from the dominant influence of knowledge acquired outside the courtroom, free from strong and deep impressions that close the mind
("light impressions," open mind)

 

 

 
Irwin v. Dowd (1961)
Irwin accused of killing six. Lots of publicity.
375 of 430 potential jurors thought he was guilty before the trial.
8 of the 12 actual jurors thought the same!
under these circumstances, could Irwin face an impartial jury?
NO!

 

 

Yet, Murphy v. Florida (1975)

20 of 78 potential jurors thought him guilty beforehand wasn't enough to claim partiality

 

 

 

What remedies does a judge have?
1. voir dire - questioning of jurors, ability to reject
2. change of venue - to a community that hasn't received a lot of pre-trial publicity
3. continuance - delay the trial under things calm down (there's still a sixth amendment problem)
4. admonition - instruct the jury to render a verdict strictly on the evidence and to not consider outside information
5. sequestration - isolating the jury

 

 

Restrictive Orders
Sheppard v. Maxwell (1966)
What if a judge decides that they has to restrict the press?
Gag orders - a judge issued writ that stops certain parties (such as the press, attorneys, witnesses etc.) from commenting on an on-going trial

 

 

Gag orders and the press
Nebraska Press Association v. Stuart (1976)
A three part test to justify a gag order
1. intense and pervasive publicity concerning the case is certain
2. no other alternative measure might mitigate the effects of pre-trial publicity (ex. the remedies above)
3. the restrictive order will in fact effectively prevent prejudicial material from reaching potential jurors

 

 

It's tough for a gag order to pass this test!
Result? Gag orders on the press are rare

 

 

What if a judge decides that they have to restrict trial participants?
The court has more leeway here
If the participants can't discuss the case, the media has little to report on
Such orders need to be narrowly tailored

 

 

Once the trial is over...
A problem - jury deliberations should be held in confidence. What if the media pursues jurists after the case is over? Might this prejudice future jurists?

 

 

Judges have tried other remedies such as closing a trial
But, this runs against the right to a "public trial"
Some exceptions:
Juvenile hearings/trials
Testimony giving by a sexual assault/abuse victim
Testimony given by an undercover officer

 

 

Other pre- and post- trial hearings (bail, evidentiary, sentencing etc.)
Press-Riverside test for closure
Presumptively open or closed?
For hearings or for documents?
In some cases, records, evidence, settlements etc. can be sealed
Easier to get print than other media (Ex. transcripts vs. audio or video tapes)

 

 

Cameras in the Courtrooms
ever seen those chalk drawings?!

 

 

Most states now allow the possibility
Usually, permission is needed from the judge and both parties
What about Minnesota?

 

 

Judges can control all aspects of the camera

(Ex. location, number and what they can show)

 

 

Cameras are rare at the federal level (and never in the Supreme Court)

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