Pretrial Publicity in the United States

Information about a particular case disseminated through the media. The basic problem with pretrial publicity in criminal cases is that it may impair a defendant’s right to an impartial jury. If publicity is pervasive enough, it may lead citizens toward at least tentative judgments about guilt or innocence. In such cases, the publicity is said to be prejudicial. Given the current reach of the media, especially the broadcast media, virtually an entire community can be influenced by information untested by accepted rules of procedure and evidence. The famous case involving Dr. Sam Sheppard portrays prejudicial consequences at their worst.

See Also

Voir Dire (Criminal Process).

Analysis and Relevance

Containing prejudicial publicity is difficult because the media is protected from most restrictions by the First Amendment. Trial judges, for example, cannot restrain the media from reporting information about a crime or a defendant except under the most extreme circumstances. Nonetheless, there are other measures that can be taken to ensure the defendant’s right to a fair trial. Trials may be delayed until publicity has subsided, or the venue (location) of a trial may be changed to a place where prospective jurors have not been exposed to media coverage of the case. Key to determining if either of these options is necessary is the voir dire process. If impartial jurors cannot be found, delay or change of venue may be ordered. The Supreme Court has ruled in Murphy v. Florida (421 U.S. 794: 1975) that prospective jurors need not be “totally ignorant” of a case. They need only be able to “reach a verdict based on the evidence presented in the court.” Once ajury is selected, it can usually be insulated from prejudicial publicity effectively, although this, too, may be difficult with a lengthy trial. The difficulty in restricting media conduct has prompted the industry itself to fashion principles of conduct for criminal case coverage.

Notes and References

1. Definition of Pretrial Publicity from the American Law Dictionary, 1991, California