Pretrial Publicity

Pretrial Publicity

The right of a criminal defendant to receive a fair trial is guaranteed by the Sixth Amendment to the U.S. Constitution. The right of the press (print and electronic media) to publish information about the defendant and the alleged criminal acts is guaranteed by the First Amendment. These two constitutional safeguards come into conflict when pretrial publicity threatens to deprive the defendant of an impartial jury.

The U.S. Supreme Court has grappled with the issue of pretrial publicity since the 1960s. In Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), the defendant, Leslie Irvin, was convicted of committing six murders in a rural area of Indiana. The crimes generated extensive media coverage. Irvin argued that the pretrial publicity prevented him from receiving a fair trial by an impartial jury. The Court agreed, noting that eight of the twelve jurors who heard the case had decided that Irvin was guilty before the trial began. Despite these admissions, the trial judge accepted as conclusive the jurors' statements that they would be able to render an impartial verdict. The Court held that the substantial publicity surrounding the case made the trial judge's determination of juror impartiality erroneous. It set out a basic rule that when pretrial publicity has been substantial, a trial court should not necessarily accept a juror's assertion of impartiality. In these cases a presumption is raised that the jurors are biased.

The Supreme Court extended this concern to the trial stage in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). Local officials allowed Dr. Samuel H. Sheppard's 1954 murder trial to degenerate into a media circus. The Cleveland media heavily publicized the case before trial and disrupted the control of the court during the trial. The jurors were exposed to intense media coverage of the case until the time they began their deliberations. Following deliberations, Sheppard was convicted of murder. Sheppard spent ten years in prison before the Supreme Court ruled that the publicity had deprived him of a fair trial. Sheppard was acquitted at his second trial.

The Sheppard case brought national attention to the problem of pretrial publicity. Trial judges attempted to address this problem by imposing gag orders on the press, preventing it from reporting pretrial information. The press resisted this approach and was supported by the Supreme Court in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976). The Court held that the trial judge's Gag Order was an unconstitutional Prior Restraint on the press.

Trial courts then attempted to close criminal trials to the public, including the press. The Supreme Court, in Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), limited this approach, holding that the right of access to criminal trials is guaranteed by the First and Fourteenth Amendments. Closure will only be permitted if there is an overriding interest, such as ensuring a defendant's right to a fair trial. In this and subsequent cases, the Court has adopted a test that makes it very difficult to justify closure.

A troublesome issue for defense attorneys is whether a jury pool is so "contaminated" by pretrial publicity that it will be extremely difficult to seat an impartial jury. In Mu'min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991), the Supreme Court held that the due process clause of the Fourteenth Amendment does not mandate that prospective jurors be asked in Voir Dire examinations about specific information concerning the case that they have seen or heard in the media. The Sixth Amendment's impartial jury requirement will be satisfied when jurors do not admit during voir dire that they have been prejudiced by pretrial publicity.

Faced with court decisions that make it difficult to prevent the media from reporting pretrial information, courts have several ways of overcoming prejudicial pretrial publicity. One common tactic is for the court to issue an order prohibiting the prosecutor, the defense attorney, and other trial participants from making public comments about the case. Courts often permit extensive juror questionnaires that give both sides the chance to identify persons who have been exposed to pretrial publicity and who have already made up their minds about the guilt or innocence of the defendant. A court also may sequester the jury during the course of the trial. Another tactic is to postpone the trial until publicity dies down. In rare cases a court will change the venue of the trial to a locale less affected by the pretrial publicity.

Further readings

Bruschke, Jon, and William E. Loges. 2003. Free Press vs. Fair Trials: Examining Publicity's Role in Trial Outcomes. Mahwah, N.J.: Lawrence Erlbaum Associates.

Stack, Richard. 1998. Courts, Counselors & Correspondents: A Media Relations Analysis of the Legal System. Littleton, Colo.: F.B. Rothman.

Swingle, H. Morley. 2001. "Prosecutors Beware: Pretrial Publicity May Be Hazardous To Your Career." Prosecutor, Journal of the National District Attorneys Association 35 (September-October).


Criminal Law; Criminal Procedure; Due Process of Law; Freedom of the Press.

References in periodicals archive ?
21 hearing on the gag order to limit prejudicial pretrial publicity in the case.
Most, if not all, prosecutors deal with pretrial publicity. And most may think that past experience has prepared them well for the onslaught of television, newspaper, and online media outlets that will converge on a mass casualty homicide.
It describes the constitutionality of police practices like the exclusionary rule, arrests and stops, searches of persons and vehicles, seizures of property, interrogation of suspects, and identification through lineups and showups, then issues that arise after criminal proceedings begin against the suspect, including procedures related to pretrial release, prosecutorial discretion, preliminary proceedings, grand jury practice, joinder of offenses and defendants, speedy trial, pretrial discovery of factual information, pretrial publicity, plea bargaining, jury trials, appeals, double jeopardy, and post-conviction remedies.
Interestingly when neither race nor suspicion was a part of the pretrial publicity, conviction rates were highest and when both race and suspicion were contained in the PTP, conviction rates were equivalent to those of a control group that received no PTP at all.
By working fast, Arnold managed to get his client's message into the public consciousness before Lane County Circuit Judge Debra Vogt took the rare step of imposing a gag order on lawyers and investigators in the case, hoping to control pretrial publicity.
Attorneys are acutely aware of the impact pretrial publicity can have on juries.
Chief Judge Sandra Lynch and Judge Jeffrey Howard said the ongoing jury selection process did not suggest pervasive prejudice, and it was not clear and indisputable that pretrial publicity required a change of venue.
"The nature and extent of the impact of the Marathon bombings and related events and the pretrial publicity engendered by those events require a change of venue if Mr.
Such pretrial publicity creates a climate of fear that is likely to influence judges and jurors.
A criminal trial (or a civil trial) should be an effort to find the truth of the matter, rather than a jousting match in which each party attempts through pretrial publicity to win over the media and the public and thus, hopefully, the minds of the prospective jurors.
(48) To support his contention that the pretrial publicity was prejudicial, the defendant presented forty-seven newspaper articles that had all been published prior to jury selection.