Criminal Trials and Censorship

Definition: Legal proceedings that determine the guilt of defendants accused of crimes

Significance: The tradition of public trials has often pitted the right of defendants to receive fair hearings against the right of the people to know and the principle of free press

When dealing with criminal trials, attempting to balance the right of freedom of speech with the defendant’s right to an unbiased verdict is the source of numerous and varied censorship issues. The issues generally can be traced to attempts at reaching an appropriate balance between the rights of the defendant to a fair trial and the rights of those who are not the defendant to free speech. What is considered an acceptable balance between these rights varies from society to society and from era to era.

At one time courts were almost completely open to the public. Trials in general, and especially certain criminal trials, were a very popular form of entertainment. The public’s right to know, to have open access to court proceedings, tended to take precedence over the defendants right to a fair trial. Too much privacy also limits the defendant’s right to a fair trial; historical examples of secret trials in which the verdict was a foregone conclusion led the founders of the United States to guarantee a public trial to the defendant. That public trials are typically in the defendant’s interest can be shown by example. For example, many juvenile courts in California are not open to the public, for the stated reason that the privacy protects minors. Critics argue, however, that such privacy has led to the minors’ rights being undervalued in abuse cases, in which only court-appointed lawyers are the children’s advocates in court. Critics have argued that public oversight of such trials could combat the bureaucratic inertia that has led, they claim, to an institutional bias for the parents.

To the extent, however, that the right of a free press translates into uncontrolled access to criminal trials, and the right to speak and write freely about those trials is uncontested, then the individual’s right to a fair trial becomes increasingly difficult to achieve. Beginning in the late twentieth century, the increasing emphasis on individual rights, as seen in the civil rights movement and in expanded rights for defendants, led to limitations on the press coverage of trials as well as access to court proceedings. Under these circumstances, censorship typically increases.

Contemporary Censorship Issues

Courts once were virtually open to the public. This openness has been replaced by closed doors, strict security, and judicial dress, procedures, and jargon that are often incomprehensible to the public. Such developments have made it difficult for the average person to raise rational questions concerning the courts. Of the possible censorship issues that arise in conjunction with criminal trials, the following are of particular significance: pretrial publicity, cameras in the courtroom, jury sequestration, witness protection (which defendants may argue is “coaching”), and privileged communications.

Pretrial publicity can be prejudicial, at times to the extent that jury verdicts and judicial decisions are influenced. What is reported, how it is reported, and when it is reported by the media are all crucial. Speculative, inaccurate, and sensationalized reporting of criminal trials is particularly problematic. Pretrial publicity that occurs prior to jury selection can make selecting jurors that are capable of reaching a verdict on the basis of the evidence presented in the case especially difficult. Pretrial publicity about evidence that is damaging but inadmissible can be particularly prejudicial, to the extent that a guilty verdict becomes more likely. The extensiveness of the pretrial publicity surrounding a criminal trial can significantly affect the trial.

The use of television cameras in the courtroom became a matter of heightened public debate with the O. J. Simpson trial in 1995. Some states and jurisdictions allow cameras in the courtroom, while others do not. Some criminal trial lawyers support allowing cameras in the courtroom; others do not. Supporters argue that it is not healthy in a democratic society to keep judicial proceedings from public observation and that television cameras allow for greater public observation and scrutiny. Opponents of cameras in the courtroom contend that they interfere with maintaining a dignified and fair trial. Arguments against allowing television cameras in the courtroom have weakened in light of technological developments that have made cameras very compact, portable, and able to operate in ordinary room light. Such cameras can be operated so unobtrusively that they need not interfere with court proceedings.

Attempts to limit possible prejudicial pretrial publicity range from attempting to limit the release of information by the media to using a variety of approaches to shield jurors from publicity. In extreme cases, in response to excessive media attention, courts can use their authority to hold members of the media in contempt if they persist in releasing inflammatory or prejudicial information. Fines or imprisonment can be levied against reporters and other media representatives if a court order regarding pretrial publicity is violated.

Change of venue—moving the trial to another jurisdiction in another city or county—is another strategy employed to limit the influence of pretrial publicity on jurors and on the trial generally. In addition, judges can caution jurors against being influenced by any pretrial publicity they hear or read. A judge’s instructions to jurors, however, seldom can overcome the influence of extensive pretrial publicity. Yet another alternative strategy is for a judge to grant a continuance in a criminal case that is beset by extensive pretrial publicity. This tactic is based on the notion that postponing a criminal trial will allow the emotional, inflammatory atmosphere surrounding the case to subside. The use of voir dire can be a valuable tool for assessing the impact of pretrial publicity as well as a means of limiting its impact on criminal trials. Voir dire involves examining witnesses and potential jurors, under oath, to determine their competency.

Jury sequestration involves keeping the jury in seclusion while the trial is under way as a means to shield jurors from the media coverage surrounding a publicized case. While jurors are sequestered, attempts are made to keep them from being exposed to radio, television, magazine, newspaper, and Internet reports of the trial. In addition, efforts are made to keep jurors from discussing the case while sequestered so that no conclusions are reached before all evidence is presented.

Generally, the level of media attention given to a criminal trial parallels the level of public interest in the case. Sequestration of jurors is typically only utilized in those cases where there is such extreme media coverage surrounding a criminal trial that it would be impossible for jurors not to be significantly influenced by the extensive coverage.

Witness protection programs are designed to protect witnesses from threats to their safety and well-being. Gangs, for example, can be a serious threat to witnesses who testify against one of their members. Witnesses under protection are often uprooted, moved to new surroundings, and cut off from family and friends. Under such conditions, witnesses often complain that they feel censored, unable to communicate with anyone they know.

Privileged communications include sidebar discussions between the judge and attorneys, which are held at the bench out of hearing of the jurors and the public. Extended sidebars can take place behind closed doors in the judge’s chambers. The widespread use of privileged communications has become a censorship issue.

Responses to Censorship

Unfortunately, many of the responses to the aforementioned censorship issues often create further censorship and additional problems. When continuances are granted and cases are postponed, for example, witnesses move away and disappear, some may die, and memories fade and recollections weaken. Defendants are given the right to a fair and a speedy trial. Poor defendants in criminal cases may not be able to afford bond, so that when continuances are granted, they may remain in jail for lengthy periods of time even though they have not been found guilty of any crime.

Jury sequestration can, if not carefully supervised, provide jurors increased opportunities to share their thoughts, influence one another, and reach conclusions before all evidence and testimony has been presented. Jury sequestration is expensive, as are witness protection programs and case continuances, requiring additional court, law enforcement, and correctional personnel and other resources. All these responses to censorship place increased burdens on jurors, witnesses, judges, and other court personnel and require careful planning and supervision.

As public outrage over crime has increased and communications have become more rapid and pervasive, it has become increasingly necessary to establish procedures that meet the needs of a free press and a fair trial. The passage of “sunshine laws”—laws that require various court proceedings, including hearings, motions, and trials, to be open—in many states underscores the importance of developing these procedures. Sunshine laws allow for hearings and other court proceedings to be closed only when clear and compelling reasons, such as the safety of a witness, can be demonstrated.

There is no perfect or complete solution to the censorship problems that arise in criminal trials. Policies and procedures are needed that attempt to balance or better accommodate the defendants’ right to an unbiased verdict and the rights of a free press. A number of recommendations have been made by scholars who study censorship issues that arise in reference to criminal trials.

One recommendation is that court proceedings that are supposedly open must be made so in reality. The use of public address systems and keeping all conversations and extraneous noise to the absolute minimum in the courtroom can be a logical first step in improving public access to criminal trials. Sidebars and other private meetings and conferences involving the judge and attorneys must be limited.

Other recommendations concern a problem that contributes to the censorship of press coverage of criminal trials. Press reports are often inaccurate and superficial. Judges and the legal profession could help remedy this situation in several ways. Judges could experiment with ways to educate and inform journalists about the background surrounding a particular case. They could meet regularly with the press for informal discussions or for more formalized presentations to discuss legal terms, procedures, and current ideas.

Other recommendations concern uniform standards for judging when pretrial publicity is so prejudicial as to justify a change of venue or the sequestration of jurors. These standards ought to be based on the overall circumstances or atmosphere surrounding the case rather than primarily on the judge’s personal viewpoint. Also, rather than banning modern technology from the courtroom, it can in certain cases be employed to protect defendants’ constitutional rights. For example, closed-circuit television can help protect children in sexual abuse cases without sacrificing the defendant’s right to a fair trial—including the right to confront their accuser. Closed-circuit television with two-way audio and visual interactive capabilities is preferable to pretrial videotaping of the child’s testimony. The child, testifying in a “child’s room,” can testify during the court proceedings, and the child’s testimony can be seen in a separate room by the defendant and others. Such procedures can allow the defendant or the defendant’s representative to confront and question the witness without so intimidating the witness as to make his or her testimony unreliable. Multiple cameras and multiple monitors can be used. Due to the interactive capabilities of the closed-circuit system, the defendant’s right to cross-examination is also protected. To the extent the child feels more comfortable to testify freely and openly, the child’s viewpoint is represented rather than censored by the emotional strain of physically confronting the defendant and a roomful of extremely serious-looking adults.

The necessity of maintaining defendants’ right to a fair trial is well established. Democratic societies, however, pay a high price if censorship becomes a fundamental means of ensuring this right. It is dangerous for a democracy to close its court system to the public. The public pays for the courts, the public serves as jurors, members of the public find themselves on trial, and ultimately the public is most influenced by the quality of justice available in courts.

Bibliography

Groscup, Jennifer. "Media and the Law." APA Handbook of Forensic Psychology. Ed. Brian L. Cutler and Patricia A. Zapf. Vol. 2. Washington: APA, 2015. 313–43. Print.

Harrison, Maureen, and Steve Gilbert, eds. Landmark Decisions of the United States Supreme Court. 2nd ed. 8 vols. Carlsbad: Excellent, 2006–11. Print.

Kelly, Sean. Access Denied: The Politics of Press Censorship. Beverly Hills: Sage, 1978. Print. Washington Papers 55.