This draft summarizes the basics of the law of pretrial publicity fairly well. But that shouldn't require most of the space in the draft (and it should require at least mention of Estes v. Texas). We don't need to conflate the presumption of innocence with the right to an impartial jury to establish that pre-trial publicity may be prejudicial to defendants' rights, or that public trial may involve possibilities of disruption.

The best route to improvement, I think, is therefore to compress the basic discussion in order to make more room for the question important in our course's context. What effects do the changes in the public information system arising from the presently-existing Net have? How should courts that already manage the consequences of mass media press coverage (primarily through jury-selection mechanisms and sequestration rather than through instructions or venue changes) adjust their practices to account for "social media" publicity?

Why aren't these links in the text, where they would be most useful to the reader?

Presumption of innocence and pretrial media coverage

-- By ClaireCaton - 01 May 2021

All defendants in criminal cases are presumed to be innocent until proven guilty beyond a reasonable doubt. The presumption of innocence, simply stated, is “being innocent until proven guilty”. The Constitution does not mention this right by name. Instead, the general principle comes from English common law and has been confirmed in numerous court rulings, such as Coffin v. United States in 1895. In a recent case, Ford v. Peery,1 the court upheld that the presumption of innocence is “the undoubted law, axiomatic and elementary”.2 Adding that the presumption is “a basic component of a fair trial under our system of criminal justice.”3 and that its “enforcement lies at the foundation of the administration of our criminal law.”4

Pretrial publicity, as defined by the American Psychological Association, is media coverage of a case that occurs prior to the trial and which can lead prospective jurors to form opinions about the case before hearing evidence in court.5 Freedom of the press enjoys constitutional protection under the First Amendment to the United States Constitution and as such, journalists can freely report on ongoing criminal cases to inform the public.

The growth of the Internet has created a powerful medium through which publicity can be disseminated. The right of a criminal defendant to be presumed innocent and the right of the press to publish information about the alleged criminal acts guaranteed by the First Amendment seem to come into conflict when pretrial publicity threatens to deprive the defendant of an impartial jury.

I Conflictual relation between presumption of innocence and freedom of the press

A Presumption of innocence and impartial jury

Many criminal cases receive extensive media coverage, through social media, newspapers, television. Capital cases, in particular, often attract extensive, emotionally charged coverage. Courts are often placed in the position of estimating community bias against a defendant on the basis of media coverage. Prosecutors, as well as defendants and defense attorneys, can be influenced by the media. Juries who are supposed to be unbiased when deciding a case, might be affected by the news coverage they may have come across before trial. As media coverage becomes more extensive and accessible in today’s society in general, it is likely more difficult to find jurors who have not been exposed to relevant pretrial publicity.

Defendants facing biased jurors might be presumed guilty instead of innocent. Yet, under the Sixth Amendment to the Constitution, every defendant is entitled to a trial by an impartial jury of his or her peers. Therefore, the need to preserve the presumption of innocence of defendants seems to require limiting publications relating to the possibility that an individual has committed a crime.

B The sub judice rule

The sub judice rule regulates the publication of matters which are under consideration by the court. Matters are considered to be sub judice (Latin for 'under judgment') once legal proceedings become active. When the media either frontally or suggestively pronounces on the merits of a matter that is sub judice or builds public opinion on guilt or innocence in criminal trials, it enters the province of courts.

The sub judice rule can either be seen as a reasonable restriction of the freedom of the press or be regarded as an unconstitutional impairment of the latter. In Sheppard v. Maxwell, the U.S. Supreme Court noted that: “there is nothing that proscribes the press from reporting events that transpire in the courtroom.”6 This is equivalent to saying that once a public hearing has been held, what has been said there could not be subject to prior restraint. This is however different from releasing information before any hearing is held.

II Counteracting prejudicial effects of pretrial publicity

A Judicial remedies

Because doing so would violate the First Amendment right to freedom of the press, courts cannot realistically stop the press from publicizing information, truthful or not so truthful, about criminal trials, notwithstanding the biasing effect of pretrial publicity. Since pretrial publicity cannot be prevented, courts must find ways to minimize its impact on the fairness of the trial. The American Bar Association recognized the harm that prejudicial pretrial publicity can cause and has suggested a number of methods to counteract its effects, including voir dire (attorneys and/or judges would question prospective jurors to determine their fitness for jury duty), judicial instruction, continuance (the court may postpone trial proceedings in order to allow time for the initial publicity to dissipate), and change of venue. However, these approaches may not be effective in eliminating juror bias.

B Jury instructions to ignore pretrial publicity

Just like for other inadmissible evidence presented in court, the judge can modify jury instructions to specifically instruct jurors to ignore pretrial publicity. Those instructions would emphasize the importance of disregarding previously heard information about the case and relying solely on the information presented during the trial.

Nevertheless, studies have demonstrated that despite the judge's instructions to disregard some information, jurors' verdicts were affected significantly by the information. Moreover, those instructions can sometimes produce a backfire effect, resulting in jurors being more likely to rely on inadmissible information after they have been specifically instructed to disregard it. Survey research has also indicated that individuals who live near an area where a crime was committed frequently develop a proprosecution bias,7 a bias likely due to greater pretrial exposure to prejudicial information. Similarly, individuals exposed to actual media reports of crime also develop a proprosecution orientation.8

Conclusion

Even though there seems to be limitations with each of these potential solutions to reduce jury bias and guarantee the right to a fair trial, the publicity of justice, criminal in particular, is most likely necessary and must be relayed by the media. According to Jeremy Bentham, the act of justice itself cannot be conceived without publicity, which guarantees the quality of justice and its democratic legitimacy. In a democratic society, justice and the press should always be complementary. Their coexistence seems inevitable even though their relation can become conflictual.

1. Ford v. Peery, 976 F.3d 1032 (2020).

2. Quoting Coffin v. United States,156 U.S. 432, 460, 15 S.Ct. 394, 39 L.Ed. 481 (1895).

3. Quoting Estelle v. Williams,425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

4. Quoting Coffin v. United States,156 U.S. at 453, 15 S.Ct. 394 (1895).

5. https://dictionary.apa.org/pretrial-publicity

6. Sheppard v. Maxwell, 384 U.S. 362-363 (1966)

7. https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1559-1816.1991.tb00524.x

8. https://psycnet.apa.org/record/2001-06603-005

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