Publicity in Criminal Cases

The law regarding publicity in criminal cases is the outgrowth of efforts to protect competing rights, both of constitutional magnitude. Because freedom of the press holds a more cherished position in our constellation of values than in many countries, efforts to ensure that jurors in criminal cases are not biased by media coverage also require special and sometimes burdensome approaches. On the whole, however, trial courts in the United States have worked assiduously to accommodate both the First Amendment right to a free press and the Sixth Amendment and due process rights of criminal defendants to an impartial jury.

The most dramatic change in media coverage of criminal trials during the last quarter of the twentieth century has been increased televised coverage. Advances in camera technology have made the photographic broadcasting of court proceedings less physically intrusive than when the Supreme Court first addressed the issue in the 1960s. The development of cable television and the proliferation of networks devoted almost full time to news programming and, more specifically, to court matters, has also made the televising of courtroom proceedings common. In the long run, this trend will probably not be reversed. Although the Supreme Court may not find a presumptive First Amendment right for the press to bring television cameras into the courts, the Justices will also not likely ignore the benefits in the way of education of the citizenry about the judicial process that can result from televised coverage of criminal trials. Most jurisdictions will probably continue to confer substantial discretion on the trial judge regarding when to allow cameras. Given the accommodation to televising in many courts that has already occurred, it seems likely that the practice will continue to be common.