Free Press/Fair Trial-Chs. 11,12

Fair Trial/Free Press

First Amendment provides for a free press.

Sixth Amendment provides for a trial by impartial jury of peers in criminal cases.

What happens when they collide?

Free Press/Fair Trial

Appeal courts will overturn a conviction due to pretrial publicity only if:

The court finds identifiable bias among individual jurors in voir dire.

An extraordinary amount of pretrial, prejudicial publicity creates presumption of juror bias. See Sheppard v. Maxwell (1966).

What is Prejudicial?

Confessions

Prior Records

Test Results

Character flaws/Lifestyle

Potential Witnesses

Speculation by Officials

Prejudicial Publicity

How to control it:

Change of venue

Change of venire

Continuance

Severance

Voir dire

For cause challenge

Peremptory

Prejudicial Publicity

Controlling it, cont.

Sequestration

Judicial admonition

New trial

Voluntary cooperation

Press, Bench, Bar Group

Prejudicial Publicity

Restraints on Sources

"Gag orders" prohibiting witnesses, lawyers, police from talking to press or public legal if:

Judge already has considered other options.

The order is no broader than necessary to protect defendant.

Pretrial Publicity

Restraints on media

Prior restraints nearly always unconstitutional.

Nebraska Press Association v. Stuart: Prior restraint possible if judge considers:

Nature and extent of publicity.

Alternative measures.

Whether restraint would be effective.

Pretrial Publicity

Subsequent punishment of media

Usually unconstitutional …

Unless there is compelling state interest or

Extremely serious and imminent threat to administration of justice.

Access to Courts

Trials presumed to be open

Jury selection usually open

But can be closed to protect fair trial

Or privacy of jurors.

Most pretrial hearings open

Can be closed for compelling reasons,

If there are no alternatives,

And closure would be effective,

And only for as long as necessary.

Cameras in Courtrooms

47 states allow TV coverage

Most federal courts ban them

Cameras in Courtrooms

Arguments for:

Strengthen public understanding of and confidence in court system

Allow the public to judge for themselves whether justice was done.

Keep public informed for purposes of self-governance.

Cameras in Courtrooms

Arguments against:

Can prejudice potential jurors

Witnesses for defense may not want to be photographed

Increase in defendant’s nervousness could create appearance of deception.

Contempt of Court

2 kinds

Criminal -- acts done in disrespect of court or its processes or which obstruct the administration of justice

Civil -- A failure to do something you were ordered to do by court, such as testify or produce document.

Contempt of Court

Punishments

Criminal

Fine (indeterminate).

Up to 6 months in jail without trial.

Or both.

Civil

Immediate custody

Progressive fine

Or both

Broadcast programming is particularly accessible to children.

Offensive language can invade home where person has right to be let alone.