Pretrial Publicity

The right of a criminal defendant to receive a fair trial is guaranteed by the SIXTH AMENDMENT to the U.S. Constitution. The right of the press (print and electronic media) to publish information about the defendant and the alleged criminal acts is guaranteed by the FIRST AMENDMENT. These two constitutional safeguards come into conflict when pretrial publicity threatens to deprive the defendant of an impartial jury.

The U.S. Supreme Court has grappled with the issue of pretrial publicity since the 1960s. In Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), the defendant, Leslie Irvin, was convicted of committing six murders in a rural area of Indiana. The crimes generated extensive media coverage. Irvin argued that the pretrial publicity prevented him from receiving a fair trial by an impartial jury. The Court agreed, noting that eight of the twelve jurors who heard the case had decided that Irvin was guilty before the trial began. Despite these admissions, the trial judge accepted as conclusive the jurors' statements that they would be able to render an impartial verdict. The Court held that the substantial publicity surrounding the case made the trial judge's determination of juror impartiality erroneous. It set out a basic rule that when pretrial publicity has been substantial, a trial court should not necessarily accept a juror's assertion of impartiality. In these cases a presumption is raised that the jurors are biased.

The Supreme Court extended this concern to the trial stage in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). Local officials allowed Dr. Samuel H. Sheppard's 1954 murder trial to degenerate into a media circus. The Cleveland media heavily publicized the case before trial and disrupted the control of the court during the trial. The jurors were exposed to intense media coverage of the case until the time they began their deliberations. Following deliberations, Sheppard was convicted of murder. Sheppard spent ten years in prison before the Supreme Court ruled that the publicity had deprived him of a fair trial. Sheppard was acquitted at his second trial.

The Sheppard case brought national attention to the problem of pretrial publicity. Trial judges attempted to address this problem by imposing gag orders on the press, preventing it from reporting pretrial information. The press resisted this approach and was supported by the Supreme Court in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976). The Court held that the trial judge's GAG ORDER was an unconstitutional PRIOR RESTRAINT on the press.

Trial courts then attempted to close criminal trials to the public, including the press. The Supreme Court, in Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), limited this approach, holding that the right of access to criminal trials is guaranteed by the First and Fourteenth Amendments. Closure will only be permitted if there is an overriding interest, such as ensuring a defendant's right to a fair trial. In this and subsequent cases, the Court has adopted a test that makes it very difficult to justify closure.

A troublesome issue for defense attorneys is whether a jury pool is so "contaminated" by pretrial publicity that it will be extremely difficult to seat an impartial jury. In Mu'min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991), the Supreme Court held that the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT does not mandate that prospective jurors be asked in VOIR DIRE examinations about specific information concerning the case that they have seen or heard in the media. The Sixth Amendment's impartial jury requirement will be satisfied when jurors do not admit during voir dire that they have been prejudiced by pretrial publicity.

Faced with court decisions that make it difficult to prevent the media from reporting pretrial information, courts have several ways of overcoming prejudicial pretrial publicity. One common tactic is for the court to issue an order prohibiting the prosecutor, the defense attorney, and other trial participants from making public comments about the case. Courts often permit extensive juror questionnaires that give both sides the chance to identify persons who have been exposed to pretrial publicity and who have already made up their minds about the guilt or innocence of the defendant. A court also may sequester the jury during the course of the trial. Another tactic is to postpone the trial until publicity dies down. In rare cases a court will change the venue of the trial to a locale less affected by the pretrial publicity.