Lesson 07: Free Press/Fair Trial Issues
Lesson 07: Free Press/Fair Trial Issues COM 440
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This 5 page Class Notes was uploaded by Nathania Subagyo on Saturday November 15, 2014. The Class Notes belongs to COM 440 at University of Washington taught by Linda Lawson in Fall2014. Since its upload, it has received 149 views. For similar materials see Mass Media Law in Communication Studies at University of Washington.
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Date Created: 11/15/14
Lesson 7 Free PressFair Trial Issues The Apparent Con ict Conflict of the First Amendment and the Sixth Amendment happen when the prejudicial publicity causes damage to the defendant s right Example 1954 trial of Dr Sam Sheppard In this case due to the trial judge s failure in controlling the massive pretrial publicity the Supreme Court overturned the murder conviction What is an Impartial Juror The Sixth Amendment criminal defendants shall enjoy the right to a speedy and public trial by an impartial jury of the state and district where the crime shall have been committed Impartial juror a person whose mind and opinion are not influenced by the knowledge of the case that is acquired outside the courtroom letting the person to be free from prejudice and bias judgment Jurors are allowed to have knowledge of a case as long as the knowledge won t cause the jurors judgment bias Compensating for Pretrial Publicity Judge s option in attempting to compensate for pretrial publicity 1 Remedies that are not restricting the press voir dire change of venue continuances jury admonitions jury sequestration 2 Remedies that attempt to control the amount and kind of information that might be broadcast or published restrictive orders limiting what trial participants andor the press can write or say about a case and courtroom closures limiting press access to a judicial proceeding A Voir Dire to tell the truth in its original French meaning The process of screening a panel of prospective jurors in order to decide which group will serve the jury Each prospective juror will be questioned by the attorneys and the judge to make sure they are not biased Venire a pool of potential jurors The process of voir dire Challenging a juror Venire goes through the preliminary screening that usually is in a form of a written questionnaire gt both sides in the case question the venire who pass the preliminary screening gt either side asks the judge to excuse a potential juror Challenging a juror is divided into two kinds a Challenges for cause An attorney has to be prepared to convince the court if he she believes that a prospective juror would not be an impartial juror b Peremptory Challenges Can be used to excuse a prospective juror for any reason Usually used for jurors Whom the judge refuses to excuse a cause Can be challenged Without a cause The judge has no power to refuse the challenge There is a limit on how many peremptory challenges an attorney can use B Change of Venue Change of location of the trial due to too much exposure of the case in the previous locationcommunity Often times a change of venue is not efficient due to the range of the exposure of the case C Change of Veniremen Change of a jury panel of the trial The court can import a jury panel instead of moving the trial to another location D Continuance Postponing the trial with a hope that the public will forget some parts of the case The defendant in order for the court to grant continuance must sacrifice hisher right to a speedy trial under the Constitution E Admonition to the Jury Instruction from the judge to the jury the jury in rendering their verdict is only allowed to consider and use the evidence that is presented in the courtroom F Sequestration of the Jury Isolation of jurors to make sure they can avoid potentially prejudicial publicity Controlling Pretrial or Trial Publicity Restrictive orders or gag orders There are times Where the judge s remedy options are not sufficient thus the judges determine to instruct the participants of the case not to talk about the case publicly or instruct the media not to report certain aspects of the case Basically the judges try to control the behavior of the participants in the case or the media A gag order mostly unconstitutional and a form of prior restraint Restrictive ordersgag orders fall into 2 distinct categories a Orders that are aimed directly at the press lin1iting what can be published or broadcast b Orders that are aimed at the participants in the trial limiting What they can tell the public and reporters about the pending legal matters The Supreme Court created three conditions for a gag order to be constitutionally justified Under the Nebraska Press Association Test 1 Intense and pervasive publicity regarding the case is certain 2 No alternative measure mitigates the effects of the pretrial publicity 3 The restrictive order will effectively prevent prejudicial material from reaching potential jurors These tests aim at the media not the trial participants Regarding the trial participants the court determines that 1 A state may prohibit outofcourt statements by lawyers under one condition those statements have a substantial likelihood of materially prejudicing the proceeding 2 A state cannot prohibit witnesses at secret grand jury proceedings from discussing their own testimony Prohibiting discussion of other information the witnesses learned at the proceeding might be able to conduct Closing the Courts to the Press Late 1970s and early 1980s most of the presses were prohibited from attending judicial proceedings in order to control the publicity Richmond Newspapers V Virginia the press and the public strangely had a constitutional right to attend criminal trials in all but the most unusual circumstances that were not explained further The PressEnterprise Test Used to determine whether they may close a court proceeding or seal a court document The judge needs to determine if the proceeding is presumptively open or not This is done by asking two questions 1 If this kind of hearing is has traditionally and historically been open to the press and public or 2 if public and press access to this proceeding play a positive role in the functioning of the judicial process If the proceeding is found to be presumptively open next step is up to those seeking to close the hearing to convince the court that it is closed for a good reason The advocates of closure must 1 Overriding interest the right to a fair trial an invasion of privacy advance an overriding interest that is likely to be harmed if the proceeding or document is open 2 Substantial Probability prove it to the court that if the proceeding is not closed there is a substantial probability that the overriding interest will be harmed 3 Reasonable Alternatives Ensure that there is no reasonable alternatives to closure that might solve the problem 4 Narrowly Tailored Narrowly tailor the closure so there is an absolute minimum of interference with the rights of the press and public to attend the hearing or see the document 5 Evidentiary Findings evidentiary findings can support the decision of closing the proceeding Also prepare a thorough factual record relating to the closure order a record that can be evaluated by an appellate court Some examples of exceptions to the rule that trials are open to the press and the public a Juvenile Hearings b Victim and Witness Protection c Traditional Military Courts d Military Tribunals or Commissions e Proceedings in Federal Courts Access to Court Documents Documents that have been ruled to be presumptively open a Evidence introduced in open court b Court docket sheet c Documents filled in pretrial proceedings d Presentencing and postsentencing reports e Plea agreements f Information indictments search Warrants and supporting affidavits evidence and other materials related to sentencing g Juror records sensitive issue likely regarded as public records open to inspection by the press and the public but in some cases it s inaccessible Documents that are generally ruled to be not presumptively open a Outofcourt settlements b Protective court orders c National security Protective Order Protective Court Orders documents covered by protective order are not presumed open purpose of issue to make sure that information disclosed by a party during the discovery process of civil litigation will not be publicized during the discovery process both sides in a legal dispute are permitted to explore the records and Witnesses and other material held by the opposing party Sealing Orders protective order issued in some cases to protect information as the terms and conditions of outofcourt settlements used for a protecting trade secrets and confidential information b discouraging unfavorable media coverage c protecting from public view information that may be of legitimate public concern Cameras and other Electronic Devices in the Courtroom proceeding was not permitted to be published in TV State courts 50 states allow camera and other electronic equipments extent of coverage allowed differs from state to state Federal courts digital audio recordings of court hearings are allowed Supreme courts cameras and other electronic devices are not permitted during the proceeding General rule for EXECUTIONS cameras and audio recording equipment are barred from the jury room Finding the Right Balance B enchbar press agreements guidelines that suggest What kind of information that should or should not be publicized about criminal cases