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... | |
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| The First Amendment may conflict with the Sixth | |
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Pre-trial publicity has the potential
to prejudice jury members
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ex. stories about "confessions,"
lie detector tests, past criminal records, witness credibility, statements
about the defendant's character or guilt/innocence, etc.
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| 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 | |
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("light impressions," open
mind)
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| Irwin v. Dowd (1961) | |
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Irwin accused of killing six. Lots of
publicity.
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375 of 430 potential jurors thought he
was guilty before the trial.
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8 of the 12 actual jurors thought the
same!
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under these circumstances, could Irwin
face an impartial jury?
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NO!
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| Yet, Murphy v. Florida (1975) | |
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20 of 78 potential jurors thought him guilty beforehand wasn't enough to claim partiality
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| 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 | |
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| Restrictive Orders | |
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Sheppard v. Maxwell (1966)
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| What if a judge decides that they has to restrict the press? | |
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Gag orders - a judge issued writ that
stops certain parties (such as the press, attorneys, witnesses etc.) from
commenting on an on-going trial
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| Gag orders and the press | |
| Nebraska Press Association v. Stuart (1976) | |
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A three part test to justify a gag order
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| 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 | |
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| It's tough for a gag order to pass this test! | |
| Result? Gag orders on the press are rare | |
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| What if a judge decides that they have to restrict trial participants? | |
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The court has more leeway here
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If the participants can't discuss the
case, the media has little to report on
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Such orders need to be narrowly tailored
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| 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? | |
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| Judges have tried other remedies such as closing a trial | |
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But, this runs against the right to a
"public trial"
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| Some exceptions: | |
| Juvenile hearings/trials | |
| Testimony giving by a sexual assault/abuse victim | |
| Testimony given by an undercover officer | |
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| Other pre- and post- trial hearings (bail, evidentiary, sentencing etc.) | |
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Press-Riverside test for closure
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Presumptively open or closed?
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For hearings or for documents?
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In some cases, records, evidence, settlements
etc. can be sealed
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Easier to get print than other media
(Ex. transcripts vs. audio or video tapes)
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| Cameras in the Courtrooms | |
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ever seen those chalk drawings?!
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| Most states now allow the possibility | |
| Usually, permission is needed from the judge and both parties | |
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What about Minnesota?
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Judges can control all aspects of the camera (Ex. location, number and what they can show) |
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| Cameras are rare at the federal level (and never in the Supreme Court) | |