Trial publicity
Trial publicity refers to the exposure of legal proceedings to media coverage, which raises significant concerns regarding the balance between a defendant's right to a fair trial and the public's right to access judicial information. These two principles can conflict when media attention threatens to influence the impartiality of a trial. Historically, there were informal restrictions on what attorneys could disclose to the press, but advancements in media have broadened the scope of trial coverage, complicating the relationship between the judiciary, the public, and the media.
The U.S. legal system emphasizes the importance of public trials as enshrined in the Sixth Amendment, allowing citizens and, to a limited extent, journalists to observe court proceedings. However, the Supreme Court has been cautious about allowing broadcast media the same access as print media, citing potential disruptions to court processes. In sensitive cases, such as those involving minors or sexual offenses, courts may close proceedings to protect privacy. Moreover, judges can implement measures like gag orders, jury sequestration, or even a change of venue to mitigate the effects of excessive publicity. While most trials do not encounter significant publicity issues, when they do arise, they can challenge the fairness of the legal process.
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Trial publicity
SIGNIFICANCE: Issues regarding trial publicity emerge from two opposing principles: the right of the accused to a fair trial and the constitutional imperative that court proceedings be public. The two concerns conflict when trial publicity threatens to bias the outcome of a trial.
Traditionally, tacit professional limitations were imposed on attorneys, restricting the information they could reveal to the news media. By the late twentieth century the potential for instantaneous, in-depth trial coverage by electronic media made trial publicity a broader social issue involving the whole judicial system, the public’s right to know, and the professional conduct of journalists. The result is freer movement of information to the public and less accountability for any one party or institution.
The principle of publicity was key to the development of modern mass democracies in Europe and America. It was through the publicizing of the private affairs of kings and other ruling authorities that a public sphere of discourse developed. Consequently, most modern constitutions call for conducting the affairs of state in public. The Sixth Amendment to the U.S. Constitution states that “the accused shall enjoy the right to a speedy and public trial.” This ensures that justice will be carried out under the watchful eye of other private citizens.
In the eighteenth and nineteenth centuries the right to a public trial meant that private citizens and print journalists could attend court proceedings. In the twentieth century access was sometimes extended to radio and television broadcasters as well. However, the U.S. Supreme Court has been reluctant to grant to broadcast journalists the access given to citizens and print journalists. The Supreme Court takes the position that broadcast technology adversely affects court proceedings.
In some cases the individual’s right to privacy takes precedence over the public’s right to know. In certain states an attorney can move to close the courtroom. If the attorney shows good cause the judge may remove spectators from the courtroom for part or all of the proceedings. This is most often done in cases involving juveniles, adoptions, or rape. Judges may also clear the courtroom if witnesses must provide embarrassing evidence, usually in cases involving sexual assault.
Typically, trial publicity is limited to coverage of a crime, the police investigation, and regular reports on courtroom testimony. In the majority of trials, publicity is not a problem. If a judge believes that trial publicity may bias the proceedings, a gag order can be issued restricting what parties in the trial may say to journalists. A judge may also sequester a jury by cutting off their access to news broadcasts and newspapers and by restricting them to their hotel rooms and court facilities. However, it is rare for gag orders to be enforced or for a jury to be sequestered.
If excessive local publicity presents a problem, a judge may also call for a change of venue by moving the trial to an area in which the pool of potential jurors is less exposed to news coverage of the case in question.
Bibliography
Chermak, Steven M. Victims in the News: Crime and the American News Media. Boulder, Colo.: Westview Press, 1995.
Chiasson, Lloyd, ed. The Press on Trial: Crimes and Trials as Media Events. Westport, Conn.: Greenwood Press, 1997.
Clehane, Dianem, and Nancy Grace. Objection! How High-Priced Defense Attorneys, Celebrity Defendants, and a 24/7 Media Have Hijacked Our Criminal Justice System. New York: Hyperion, 2005.
"Rule 3.6: Trial Publicity." American Bar Association, 2024, www.americanbar.org/groups/professional‗responsibility/publications/model‗rules‗of‗professional‗conduct/rule‗3‗6‗trial‗publicity/. Accessed 11 July 2024.
Surette, Ray. Media, Crime, and Criminal Justice. 5th ed. Cengage, 2014.