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Publicity in Criminal Cases - Judicial Rules Governing Prejudice Assessments

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The Supreme Court has dealt with the speculative nature of assessments of publicity through three rules that mean that the decision of the trial judge will usually be honored. First, the Court has held that juror-bias determinations are largely factual rather than legal so that the trial judge is in the best position to decide them; appellate courts have been directed to defer to a trial court's finding on juror impartiality except in cases of clear error. Second, the Court has been grudging in its view of what constitutes evidence of prejudicial publicity. The Court has held that, except in extraordinary cases, publicity is not prejudicial unless a juror actually states an inability to ignore it. Third, the Court has held that trial courts need not ask potential jurors specifically about the content of relevant publicity to which they have been exposed, but rather may rely on more general questions about whether the jurors can be fair. These three rules together mean that a trial judge's conclusion that a jury is constitutionally impartial will rarely justify reversal.

The Supreme Court has long held that appellate courts should generally defer to the trial judge's finding on juror bias. The Court declared in Reynolds v. United States, 98 U.S. 145 (1878), that the factual nature of the inquiry justifies affirming the trial court's conclusion except in cases of "manifest error." In more recent times, in Wainwright v. Witt, 469 U.S. 412 (1985), the Court concluded that the impartiality question was purely factual, so that the trial court's finding should not be overturned unless the conclusion lacks support in the record.

The Court has also been reluctant to find evidence of juror bias from publicity unless a juror actually admits an inability to ignore it. Court opinions during the era of Chief Justice Earl Warren reflected the view that prejudice from pretrial publicity may sometimes be presumed, despite claims by jurors that they can remain impartial. More recent opinions, however, imply that the Court will rarely be willing to find prejudice unless a juror admits bias during voir dire.

The view of the Warren Court was embodied in the opinions in Marshall v. United States, 360 U.S. 310 (1959), and Irvin v. Dowd, 366 U.S 717 (1961). Marshall was decided under the Court's supervisory powers over the federal courts rather than as an interpretation of the Constitution. It held that jurors who have heard through the press of the defendant's previous criminal record are "presumed to be prejudiced," as this information would not typically be admissible in the government's initial case at trial.

In Irvin, the presumption of prejudice was grounded on the Constitution and was triggered by a combination of factors. The trial was held in a rural county adjoining the county in which the crime had occurred. The pretrial publicity in the trial county was intense and sustained throughout the six months before jury selection. For example, the press accounts revealed that Irvin had been convicted of previous crimes, that he had been identified from a police lineup as the murderer of six persons, that he had been placed at the scene of the charged murder, that he had confessed to the six murders, and that he had offered to plead guilty in return for a ninety-nine-year sentence. Also, many prospective jurors had been influenced by the stories. At the beginning of the trial, 268 of the 430 potential jurors were excused because they admitted having fixed opinions that Irvin was guilty. Almost ninety percent of the prospective jurors, including eight who were selected, admitted having some opinion that he was guilty. In these circumstances, the Supreme Court concluded that the jury should be presumed to have been prejudiced.

Three subsequent Warren Court decisions—Rideau v. Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966)—confirmed that prejudicial press coverage could be found without an admission of bias by jurors In Rideau, local stations broadcast a twenty-minute film of the defendant confessing to the charged offenses three times about two months before the trial, and three members of the jury stated that they had seen it. In Estes, the press was allowed to create a "circus atmosphere" during the trial, sitting within the bar of the courtroom and overrunning it with camera equipment. In Sheppard, both the sensational nature of the pretrial publicity and the unrestricted presence of the media in the courtroom had produced a strong impression of the defendant's guilt. All three decisions applied the Irvin presumption of prejudice to cases based on the inflammatory nature of the press coverage, without statements by many prospective jurors that the media activity had biased them.

Supreme Court decisions after the era of Chief Justice Warren indicated, however, that the presumption of prejudice would not often be applied. The Court declined to apply the presumption in Murphy v. Florida, 421 U.S. 794 (1975), although extensive pretrial publicity had detailed the defendant's prior convictions for grand theft and murder, and 25 percent of the seventy-eight prospective jurors examined had been dismissed because they held a strong opinion about his guilt.

The use of the presumption of prejudice was also limited by the Supreme Court's decision in Patton v. Yount, 467 U.S. 1025 (1984). A high school teacher, Yount had been convicted in Pennsylvania state court after a second trial, held some four years after the crime, of the brutal murder of one of his female students. The crime had occurred in a rural county, and the publicity about it before the first trial had been intense and sustained. Even by the start of the second trial, only two of the 163 prospective jurors had not heard about the murder, and 126 of them stated that they would not be able to put aside their opinion that Yount was guilty. This was seventy-seven percent of the pool, an even higher figure than the similar group in Irvin. Five of the twelve jurors who heard the second trial also stated that they had previously formed an opinion that Yount was guilty, and one stated that he would require evidence of innocence to overcome his view. Nonetheless, the Supreme Court concluded that the trial judge had not erred in proceeding to trial with the jury. This decision means that prejudice from publicity is rarely a basis for constitutional challenge unless a juror has confessed to a bias. A presumption of prejudice will generally arise only where the media coverage has been exceptionally inflammatory and enduring and, except where the press has also overrun the courtroom, has caused the vast majority of prospective jurors to reach fixed opinions that the defendant is guilty.

A 5 to 4 majority of the Supreme Court also held, in Mu'Min v. Virginia, 500 U.S. 415 (1991), that a trial judge need not examine prospective jurors intensively about publicity. The media coverage in the case had been extensive and damaging to Mu'Min. He was charged with a murder committed after he had escaped from a prison work program. The publicity revealed that his prison sentence was for a prior murder and that he had been denied parole six times. It also indicated that he had confessed to the new murder. Sixteen of the twenty-six prospective jurors, and eight who made it onto the jury, stated in response to a general question that they had heard about the case. However, the trial judge declined a defense request to examine jurors specifically about what they had heard, relying on prospective jurors' general assurance that they had not formed opinions about guilt and could be impartial. While conceding that more specific inquiry could have helped in assessing whether jurors were impartial, the Supreme Court held that the inquiry was not constitutionally required.

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