Publicity in Criminal Cases

Evaluating whether publicity is prejudicial is a subjective endeavor. The problem arises in only a small proportion of all criminal prosecutions. The vast majority of cases spark no serious press interest. In larger urban areas, even murders are sufficiently common that many will receive relatively little attention. However, a few criminal cases attract intense media interest, usually because of the fame of the defendant, the fame of the victim, or the unusually gruesome or salacious nature of the crime. When a case has received publicity, there is always potential that the accounts have reached some of the jurors. Assessing whether the stories have rendered them biased can be difficult.

First, the legal standard of "impartiality" itself connotes a highly speculative determination. What does juror impartiality mean? It obviously does not signify that a juror must come to the courthouse as an empty cipher, without political leanings, moral beliefs, or views about crime. Impartiality also does not mean that a juror must be ignorant about the case or have avoided forming an impression about the defendant's guilt. The Supreme Court concluded long ago, in Reynolds v. United States, 98 U.S. 145 (1878), and has repeated many times, that an impartial juror is merely one who will base a verdict on the evidence presented at trial and the instructions of the trial judge. Prospective jurors who can put aside impressions about the defendant's guilt and can ignore external information to which they have been exposed are deemed impartial. Social science evidence reflects disagreement about whether juries will follow a trial court's instructions to ignore external information. Yet, many prospective jurors who have been exposed to external information, including powerful press accounts, will claim that they can abide by the impartiality standard. How should the trial judge decide when to believe them? Resolution of this kind of question involves much guesswork.

Measuring prejudice is particularly difficult when the assessment occurs weeks before trial, which is when claims of prejudicial publicity are typically first considered. At this stage, the trial judge often lacks good information about many factors that may bear on the prejudice inquiry. How many potential jurors may have seen or heard about the press accounts? With what level of interest have they followed the stories? Does the publicity reveal information that will not be admissible at trial? Does it give an undue emphasis to factors that would not be heavily emphasized at trial? Will the information in the news accounts accord with or conflict with a defense theory to be asserted? Assuming the publicity subsides, will the passage of time before the trial date cause jurors to forget much of the press accounts? The judge must often estimate the answers to these kinds of questions, because the prospective jurors have not been assembled for questioning, and the judge knows little about the trial evidence.

The determination involves much speculation even if delayed until the beginning of the trial. At this point, the judge can obtain information from potential jurors regarding the number who are aware of the publicity and the number who believe they could not ignore it. The judge still cannot easily assess, however, when jurors who assert that they can be impartial are being unrealistic. At this stage, the judge is also more likely to have ruled on the admissibility of some evidence subject to pretrial challenge, such as a confession by the defendant, and thus can know whether the press stories have exposed certain information that has been suppressed. However, the judge will likely remain only vaguely informed about much of the trial evidence and thus, will not know how much the press accounts will overlap with the government's case or conflict with the defense theory. To the extent that the external information is not covered by the evidence and collides with the defense, it may be more difficult for jurors to ignore. This means that, even at the start of trial, the judge's assessments of prejudice from publicity are imprecise.