Mass Media Law 18 th Edition Don Pember Clay Calvert Chapter 11 Free Press–Fair Trial: Trial-Level Remedies and Restrictive Orders McGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.

11-2 Prejudicial Crime Reporting Crime Stories That Can Endanger Defendants’ Rights: 1.Confessions or stories about confessions the defendant is said to have made, which include even alluding to the fact there may be a confession 2.Stories about the defendant’s performance on a test, such as a polygraph

11-3 Prejudicial Crime Reporting Crime Stories That Can Endanger Defendants’ Rights: 3. Stories about the defendant’s past criminal record 4.Stories that question the credibility of witnesses 5.Stories about the defendant’s character, associates or personality

11-4 Prejudicial Crime Reporting Crime Stories That Can Endanger Defendants’ Rights: 6.Stories that tend to inflame the public mood against the defendant 7.Stories that are published or broadcast before a trial and suggest, imply or declare the defendant is guilty

11-5 Prejudicial Crime Reporting Impact on Jurors –Intensive press coverage of a case might jeopardize the rights of a defendant, but research has not yet proven: Publicity creates prejudice against a defendant Jurors cannot set aside their beliefs about a case and render a verdict based solely on facts presented in court

11-6 Prejudicial Crime Reporting The Law and Prejudicial News –An impartial juror: Must be free of deep impressions and beliefs that will not yield to the evidence that is presented during the trial (U.S. v. Burr, 1807) “…need not…be totally ignorant of the facts and issues involved” (Murphy v. Florida, 1975)

11-7 Prejudicial Crime Reporting The Law and Prejudicial News –An impartial juror: Cannot hold “such a fixed opinion they could not judge impartially the guilt of the defendant” (Patton v. Yount, 1984)

11-8 The Law and Prejudicial News An Impartial Juror –The high court is willing to permit jury service by a person who possesses knowledge or has an opinion about a case, so long as: 1.The knowledge or opinions are not so closely held that they cannot reasonably be put aside in face of evidence; and 2.The publicity surrounding the case is not so widespread and prejudicial as to render a potential juror’s assurances of impartiality as unbelievable

11-9 Prejudicial Crime Reporting The Law and Prejudicial News –The high court is willing to permit jury service by a person who possesses knowledge or has an opinion about a case, so long as: 1.The knowledge or opinions are not so closely held that they cannot reasonably be put aside in face of evidence; and 2. The publicity surrounding the case is not so widespread and prejudicial as to render a potential juror’s assurances of impartiality as unbelievable

11-10 Traditional Judicial Remedies Trial Level Remedies for Pretrial Publicity: 1.Voir dire 2.Change of venue 3.Change of veniremen 4.Continuance 5.Admonition 6.Sequestration

11-11 Traditional Judicial Remedies Voir Dire –Each perspective juror is questioned prior to being impaneled in an effort to discover bias –Challenges for cause - when an attorney convinces the court that there is a good reason a potential jury member should not hear the case –Preemptory challenges - a limited number of challenges granted without need to prove cause for removal of a jury member

11-12 Traditional Judicial Remedies Change of Venue –When a judge orders a trial moved to a distant county to find a jury that has not been exposed to publicity about a case

11-13 Traditional Judicial Remedies Change of Venue –If a change of venue is ordered: All of the participants—prosecutor, defense attorney, judge, defendant, witnesses and others— will go to the new location The jury will be selected from members of the new community

11-14 Traditional Judicial Remedies Change of Veniremen –When the court imports a jury panel from a distant community

11-15 Traditional Judicial Remedies Continuance –When a judge postpones a trial for weeks or months –A continuance may be granted when a judge expects people in the community will forget at least some of the publicity surrounding the case

11-16 Traditional Judicial Remedies Admonition to the Jury –When judges tell impaneled juries they must render their verdict solely on the basis of the evidence presented in the courtroom

11-17 Traditional Judicial Remedies Sequestration of the Jury –When jury members are sequestered, they: Live in a hotel and eat all meals together, and Are denied access to media accounts and personal communication about the trial

11-18 Restrictive Orders to Control Publicity –Judges issue restrictive orders, also known as “gag orders” to stop those involved in a case from making public comments –Restrictive orders can limit what parties can say, when they can sit, and whom they can speak

11-19 Restrictive Orders to Control Publicity –Restrictive Orders can be issued to: The plaintiff and defendant The attorneys The press

11-20 Restrictive Orders Restrictive Orders Aimed at the Press –Nebraska Press Association v. Stuart (1976) The judge in a sensational murder trial issued a restrictive order barring the printing or broadcasting of material about the victims U.S. Supreme Court ruled this order was an unconstitutional prior restraint on the press; there must be a clear and present danger to the defendant’s rights to issue such an order

11-21 Restrictive Orders to Control Publicity Restrictive Orders Aimed at the Press –Nebraska Press Association Test for Restrictive Orders Aimed at the Press: 1.There must be intense and pervasive publicity about the case 2.No other alternative measure might mitigate the effects of the pretrial publicity 3.The restrictive order will in fact effectively prevent prejudicial publicity form reaching potential jurors

11-22 Restrictive Orders to Control Publicity Restrictive Orders Aimed at the Press –The U.S. Supreme Court ruled that confidential information about a trial that was legally obtained by the press may be published Landmark Communications v. Virginia (1978) Smith v. Daily Mail Publishing Co. (1979)

11-23 Restrictive Orders to Control Publicity Restrictive Orders Aimed at the Press –The number of restrictive orders aimed at the press has dwindled substantially during the past three decades as a result of the Nebraska Press Assn., Landmark, and Smith cases

11-24 Restrictive Orders to Control Publicity Restrictive Orders Aimed at Trial Participants –More likely in high profile cases –The law regarding restrictive orders barring participants from speaking or publishing about a case, however, is still developing

11-25 Restrictive Orders to Control Publicity Restrictive Orders Aimed at Participants –Lawyers may be barred under court rules or codes of conduct from making extrajudicial comments on a case, whether or not a restrictive order has been issued

11-26 Restrictive Orders to Control Publicity Restrictive Orders Aimed at Participants –Judges can bar jurors from speaking to the press while the trial is in progress or while jury deliberations are still ongoing –Courts have also tried to limit communication between jurors and the press following trials