Publicity in Criminal Cases

Media coverage of criminal cases poses a dilemma. Press attention in criminal cases sometimes has significant benefits. Publicity can cause unknown witnesses to come forward so that their information may be considered and the facts correctly determined. It can also help to ensure that those administering the criminal process will act fairly by subjecting their decisions to public scrutiny. Media attention can also provide the stimulus for needed changes in the criminal process or, alternatively, the information by which the public can conclude that the system operates appropriately. Nonetheless, press coverage may sometimes pose grave problems. Publicity may cause some judges or prosecutors, particularly those who must face reelection, to act out of political expediency rather than fairness. It may inappropriately expose witnesses or other participants to reputational damage, along with threats and even reprisals. It can disrupt courtroom proceedings. Also, and certainly not least important, it can bias jurors, usually against the criminal defendant.

The decision to solve this dilemma by restricting the press from publishing information it possesses has been favored in some countries. In England, and several other countries of the British Commonwealth, the press may only safely report before trial the essential facts of arrest and charge and, during trial, a balanced and objective account of the basic proceedings on the record. To do more will risk a contempt citation and fine or even imprisonment if the accounts are deemed to pose a reasonable chance of influencing the fact finder. In rare situations, the press may even be restricted by judicial order from reporting factually accurate material that would otherwise be published without sanction.

In the United States, the dilemma is not so easily solved because the arguments both for and against press coverage are often of constitutional proportions. On the one hand, the First Amendment guarantees the freedom of the press, which includes reporting on criminal cases. On the other hand, the Sixth Amendment and the due process clauses in the Fifth and Fourteenth Amendments guarantee the criminally accused the right to a trial by an impartial jury. It is also now established that these provisions limit the states as well as the federal government.

The problem of accommodating the public's right to a free press and the defendant's right to an unbiased jury has long existed. For example, during the 1807 trial of Aaron Burr for treason, Chief Justice John Marshall of the U.S. Supreme Court, sitting as a trial judge, was forced to contend with defense claims that jurors had been biased by pretrial press accounts. Likewise, both the trial of Sacco and Vanzetti in 1921, for murder, and the trial of Bruno Richard Hauptmann in 1935, for the kidnapping and murder of the Lindbergh baby, raised serious concerns about whether jurors had been unduly influenced against the defendants by publicity.

Nonetheless, the problem of prejudicial publicity for courts has increased since the middle of the twentieth century due to the expansion of federal constitutional rights, including their extension to state criminal justice systems, and the advent and growth of television as a powerful and widely observed medium for news reporting. The press coverage of the prosecution of O. J. Simpson for the 1994 killings of his ex-wife and one of her friends demonstrated the potential problem. The publicity in the Simpson case, particularly by the television media, was unrivaled in American history, and that coverage included much information that was damaging to Simpson that was not admitted as evidence at the trial. Likewise, in the prosecutions of Timothy McVeigh and Terry Nichols, for the 1995 murders of dozens of people from the bombing of a federal office building in Oklahoma City, serious questions arose about how to protect the defendants' constitutional right to an impartial jury in light of the intense and enduring television coverage not only in Oklahoma but throughout the country.

Despite the increasing magnitude of the problem of prejudicial publicity in criminal cases, the judicial response in the United States continues to reflect a high place for the First Amendment guarantee of a free press. Courts have gone far in assuming that biased jurors can be detected and excluded through the questioning process, called voir dire, that accompanies jury selection and, further, that those chosen as jurors can ignore publicity when told to do so by the trial judge. Where these protections are deemed insufficient, courts have also relied heavily on additional remedies designed to overcome prejudicial publicity rather than on remedies aimed at preventing publicity. Even where they have taken steps to limit publicity, courts have opted for measures that restrict the information flow to the press rather than measures that prevent the press from publishing information in its possession. The First Amendment has generally barred the use of direct limitations on the press's power to publish information it has obtained.