Publicity in Criminal Cases

Although trial judges are not often reversed in their rejection of constitutional claims of prejudicial publicity, they also often take steps to protect criminal defendants from publicity. Remedies protective of defendants can be grouped into two general categories. One group is designed to overcome publicity that has already appeared or that will be allowed to appear. The second group aims to prevent prejudicial publicity from appearing in the first place. This section covers the first category of remedies. The second category is covered subsequently.

Trial judges will often attempt to overcome potentially prejudicial publicity through the careful voir dire of prospective jurors and the use of forceful instructions provided to those who are selected to serve. During the voir dire process, the judge, or in some courts the lawyers, question prospective jurors about their views on matters that concern their general qualifications to serve and their impartiality regarding the particular case to be tried. Instructions are also given by the trial judge to jurors during the trial regarding their conduct while serving and regarding the information they are to consider in reaching a verdict. Although the Supreme Court's decision in Mu'Min, discussed earlier, indicates that the voir dire need not be particularly searching, the Supreme Court also has emphasized that a careful and probing voir dire to expose and exclude biased jurors, along with forceful instructions on the need to ignore external information, can go far toward remedying potentially prejudicial publicity in many cases.

Trial judges also sometimes order a continuance of the trial to help overcome potentially prejudicial publicity. With the passage of time, many prospective jurors may forget damaging details included in the media coverage and may soften or efface their opinions about the defendant's guilt. The Supreme Court acknowledged the importance of the passage of time between the publicity and the trial in Patton v. Yount, 467 U.S. 1025, 135 (1984), where it upheld the conviction over a claim of prejudicial publicity. At some point, this remedy involves a tension with the defendant's Sixth Amendment right to a speedy trial as well as with the benefits to victims, witnesses, the prosecution, and, ultimately, the public, from prompt adjudication of criminal charges. This remedy also will not help greatly in highly notorious cases where the local media interest can be expected to endure for a long period. Examples include the prosecution of Charles Manson for the 1969 Tate-LaBianca murders in Los Angeles, or the murder prosecution of Pamela Smart in New Hampshire for the 1990 killing of her husband by two fifteen-year-old boys, one of whom she had been sexually exploiting. Nonetheless, it is commonplace for a trial judge to respond to a claim of prejudicial publicity by postponing the trial for several weeks, or even several months, particularly if the defendant requests this relief.

Sometimes a trial judge will grant a request for a change of trial venue, away from the location of the crime. Usually, the jurors will be selected from the area where the trial is occurring and will be less likely to have been influenced by local media coverage than persons from the original venue. If the jury is from the area of the new venue, this remedy can raise a conflict at times, particularly in federal court, with the defendant's Sixth Amendment right to be tried by a jury "of the State and district wherein the crime shall have been committed." However, the defendant can waive the right to a jury from the original state or district. Indeed, a change of venue, and a jury from the new venue, was imposed in the federal trials of Timothy McVeigh and Terry Nichols, for the 1995 bombing murders of scores of persons in the federal building in Oklahoma City. Although inconvenient to many, the federal judge took the extraordinary step of moving the trials from Oklahoma City to Denver.

To overcome prejudicial pretrial publicity, a judge may also use an imported pool of prospective jurors. A group of persons from a different, but still relatively nearby county, may be less influenced by publicity about a case. The trial judge used this approach in the 1979 trial in Chicago of John Wayne Gacy for the murder of more than thirty young men, whose bodies were found buried at his residence.

Where there is concern that publicity after the trial begins could influence jurors, the judge may also order sequestration of the jury. During sequestration, jurors are typically housed in a hotel and transported to the courthouse by court officials, so that their activities can be controlled and the possibilities for exposure to the media or other outside contacts greatly restricted. In the criminal trials of O. J. Simpson and Charles Manson, for example, the juries were sequestered. This remedy is not always popular, because it can be expensive and can impose a great personal burden on jurors.

Finally, a trial judge can sometimes order a new trial if it appears during or after trial that the jury was biased by publicity. In response to publicity that is deemed prejudicial to the defendant, a judge can stop a trial and order a new one at the defendant's request or, if the trial is completed and the defendant is found guilty, vacate the verdict and order a new trial. In the rare situation in which publicity prejudices the prosecution, double jeopardy law permits the judge to stop a trial and order a new one based on "manifest necessity," but does not allow a new trial once the defendant is acquitted. Although a new trial can sometimes be a backstop remedy for prejudicial press coverage, given the high costs of retrying a case, courts generally prefer to take precautions to ensure that the first jury sworn remains unbiased.