Juror bias through the scientific lens

The free press-fair struggle has helped shape the freedom of the press, including press access to the courtroom and a heavy burden of proving the necessity of press gag orders. Many legal and media experts have weighed in on the benefits and disadvantages of allowing pre- and mid-trial publicity of criminal cases. The conflict even inspired the American Bar Association to release free press-fair trial guidelines. But many psychology researchers have also taken an interest in objectively quantifying the effects of press coverage on juror bias.

In one 2012 study, “Timing and Type of Pretrial Publicity Affect Mock -Jurors’ Decisions and Predicisional Distortion,” researchers from different branches of the University of South Florida evaluated mock-jurors’ responses to exposure to pretrial publicity (shortened to PTP in the text of the study). Each mock juror read the same eight pieces of pretrial news stories. There were four stories with an anti-defendant slant and four with a pro-defendant slant. The only thing that varied in the mock jurors’ exposure to these stories was the order they read them in.

The researchers had 207 college students ages 18 to 57 meet in groups of 12 to fill out mock juror questionnaires. All the students were citizens legally eligible for serving on a jury. After the initial meeting, students were expected to read a piece of pretrial publicity and complete an online survey each day. After a week or two, the group of 12 would reconvene to watch prerecorded trial proceedings on a television and render individual verdicts (there were no jury deliberations).

The researchers concluded:

One important implication of this study is that the timing of conflicting PTP matters. For the defendant, it is important not to leave negative PTP unchallenged. Doing so could result in bias against the defendant becoming so strong that it is difficult, if not impossible, to overcome. In contrast, combating negative PTP with positive PTP in a timely fashion may not only reduce or eliminate the negative PTP bias, but could result in a pro-defense/acquittal bias.

In another recent study, entitled “Pretrial publicity and juror age affect mock-juror decision making,” psychology researchers investigated how age affects jurors’ biases drawn from media coverage of criminal proceedings. Researchers drew subjects from two age groups, college-age subjects ages 18 to 21 and senior citizens ages 60 to 80. There were 78 subjects in the younger group and 76 in the older group.

In the first day, groups of 12 came in, filled out juror questionnaires, read a series of pretrial media stories with both pro- and anti-defendant angles and then recorded what they could remember from each story and their emotional reaction to those stories. A week after this first meeting, the group of mock jurors returned to fill out another survey about their reactions to the pretrial publicity. The group then viewed a 30-minute videotape of an actual recorded trial proceeding and deliberated until they rendered a verdict.

Researchers found that the effect of pretrial publicity varies based on jurors’ ages. Strangely, stories with one clear anti- or pro-defendant position greatly affected mock jurors of one age group, but did not at all affect jurors of the other age group. Positive, pro-defendant pretrial news stories only affected older mock jurors’ biases, while negative, anti-defendant pretrial stories had an effect on only the younger group of mock jurors. The researchers noted that, in prior studies, negative pretrial publicity impacted mock jurors of all ages, so the finding of an effect only on the young group was surprising.

In the Discussion section, the researchers suggested a reason why negative pretrial publicity affected the young mock jurors:

It is interesting that older and younger jurors who were exposed to P-PTP [pro-defendant pretrial publicity] did not significantly differ on guilt ratings, verdicts, or emotional responses to PTP; whereas older and younger jurors exposed to N-PTP did significantly differ. These findings are consistent with Kisley et al.’s (2007) findings that responding to positive stimuli is relatively age invariant across most of the lifespan, while responding to negative stimuli gradually decreases over the lifespan. Kisley and associates suggest that the positivity effect is due to a decrease in processing of negative stimuli rather than an increase in processing of positive stimuli. Therefore, the age-related differences in the effect of PTP on verdicts may be due to older jurors’ decreased processing of negative case information (PTP) compared to younger jurors.

In a juror’s real-world experience, there are many factors that can affect the biases he brings with him to trial. Location and socioeconomic status determine whether a potential even has access to pretrial publicity – wealthier jurors have better means of purchasing televisions and paying a cable bill each month, for instance. Other factors, such as prior exposure to crime and the juror’s and defendant’s races, also shape a juror’s decision on a verdict independent of any exposure to pre- and mid-trial publicity.

The effects of publicity on juror bias as a research topic has a decent history, with studies dating to the ’80s and ’90s. Even in a field highly focused on concrete results from quantifiable data, the topic still continues to stir interest in further research.

Gag orders on trial participants and indirect limitation of press freedom

Following the rulings in Nebraska Press Association  v. Stuart and other prior restraint cases, it’s generally understood that courts almost never uphold requests for halts to publication, even if it means protecting a fundamental right, such as a defendant’s right to a fair trial. The Supreme Court has endorsed in Sheppard v. Maxwell (and later in Nebraska Press Association) gag orders on trial participants as a viable alternative to gag orders of the press.

Theoretically, punishing journalists or private citizens engaging in speech ahead of the distribution of their message is the “worst infringement” of the First Amendment right to free expression, the Supreme Court said in Nebraska Press Association. But despite this practice of granting free expression extreme protection, courts have no issue punishing speech or publication after it occurs. This can cause journalists to self-censor and can indirectly limit the freedom of the press.

Without a federally recognized reporter’s privilege, journalists can face civil contempt citations and other sanctions for declining to disclose an anonymous source’s identity. A judge could issue a gag order on trial participants, such as involved attorneys, who would otherwise provide essential information about a trial or court proceeding to reporters. A reporter might get an attorney to speak on the condition of anonymity, and then the judge could demand the reporter give up his source so that source can be punished for violating the original order.

While the press is free to write about a trial and to use anonymous sources, judges can hold journalists in contempt for not disclosing the identity of an information leaker. It could be argued that gag orders on involved parties are equivalent to gag orders on the press. The only distinction is that the government’s burden for proving necessity of a gag order on involved parties is much lighter than the burden for proving necessity of a gag order on the press.  By circumventing the press gag order and forbidding involved parties from disclosing information about proceedings, courts can produce the same end result while seemingly upholding the law and not violating any First Amendment protections.

According to the Reporters Committee for the Freedom of the Press (RCFP) First Circuit Open Courts Compendium, there are three requirements for the issuance of a gag order on involved parties: “(1) there is a showing of good cause as required by Rule 26(c); (2) the restriction is limited to the discovery context; and (3) the order does not restrict the dissemination of information obtained from other sources.”

Meanwhile, under the Supreme Court decision CBS Inc. v. Davis, gag orders on the press “may be used only in ‘exceptional cases’ where ‘the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.’”

These standards are clearly very different; it’s much easier for the government to get a gag order on involved parties than on the press. Unlike the test for a gag order on trial participants, the government has a “heavy burden” to prove the necessity of any kind of prior restraint of the press, the Supreme Court said in a per curiam opinion in New York Times Co. v. United States.

Even if a judge hasn’t issued a gag order, state bar guidelines can still legally bind lawyers involved in a case and can curtail a lawyer’s freedom to speak to the press about a case already open to the public, the Supreme Court ruled in 1991 in Gentile v. State Bar of Nevada. Lawyers’ speech doesn’t carry the normal, strong First Amendment protection test of “clear and present danger” of imminent harm or prejudice affecting a defendant.

Instead, the court noted that a “substantial likelihood of material prejudice” test was enough to protect a lawyer’s speech about a case he is directly involved in. The court struck down the specific Nevada Bar guideline for vagueness, but the ruling in favor of Gentile didn’t change the fact that lawyers’ speech, especially addressed to the press, receives less protection than normal speech.

Gag orders can be necessary to protect a defendant’s right to a fair trial. It is important to note that while press freedom is a constitutionally protected right, so is the right to a fair trial. They are equally important rights with equal protections. However, the potential for harm to the defendant is much greater than that to the press. While the press may not be able to print certain facts about a story if a court abridges the First Amendment with a gag order, a defendant risks loss of money, liberty or even his life if publicity prejudices the jurors at his trial.

One of the four main tenets of the Society of Professional Journalists Code of Ethics is to “minimize the harm.” The code reads: “Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect … [They should] [b]alance a criminal suspect’s fair trial rights with the public’s right to be informed.”

The Massachusetts reporter’s privilege

Massachusetts is one of the 10 states without a shield law on the books, joining a small minority that interpret the so-called “reporter’s privilege” under case law. While the U.S. Supreme Court has denied the existence of a constitutionally protected reporter’s privilege, states legislatures are free to enact laws that give more rights to journalists than the baseline fundamental rights granted in the United States Constitution. Currently 40 states and the District of Columbia have statutory shield laws in effect.

The Massachusetts reporter’s privilege is confusing and open to interpretation, but ultimately Massachusetts courts have acknowledged a limited reporter’s privilege. Massachusetts common law protects reporter’s privilege when the reporter’s interest in protecting his source’s identity outweighs the government’s or private lawsuit party’s interest in procuring evidence. Courts are more inclined to protect information gathered from confidential sources than sources who have spoken on the record, however.

A First Circuit appellate court decision from 1998 acknowledged the existence of a limited reporter’s privilege to protect his sources. In Cusumano v. Microsoft, the First Circuit court determined that Microsoft Corporation could not compel two academic researchers to produce research materials for a book concerning an antitrust lawsuit Microsoft was involved in. The court established a balancing test for a limited First Amendment privilege of protecting confidential information.

Quoting United States v. LaRouche Campaign, the court said when district courts must decide whether to enforce requests for discovery production of materials used “in the preparation of journalistic reports,” the courts should “be aware of the possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights.” To determine how discovery requests should be limited, if at all, those courts “must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.”

Importantly, the court also declined to limit the applicability of the protection to the traditional definition of journalists. The court noted that academic researchers and journalists share many trade similarities and therefore must both enjoy a First Amendment privilege to protection of confidential sources and information:

Courts afford journalists a measure of protection from discovery initiatives in order not to undermine their ability to gather and disseminate information. Journalists are the personification of a free press, and to withhold such protection would invite a “chilling effect on speech,” and thus destabilize the First Amendment. The same concerns suggest that courts ought to offer similar protection to academicians engaged in scholarly research. After all, scholars too are information gatherers and disseminators … Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses. Such similarities of concern and function militate in favor of a similar level of protection for journalists and academic researchers.

There have been a few recent attempts to pass a shield law in Massachusetts. An attempt in 2007 failed in early 2008, as well as a more recent attempt by the Massachusetts Broadcasters Association in 2010. Last year, another possible shield law called the “Free Flow of Information Act” that offered protection to journalistic bloggers made the rounds in the news media before it too failed. Massachusetts still doesn’t have a shield law on the books.

While Congress has repeatedly failed to pass a federal shield law statute and the courts have ruled that the Constitution doesn’t protect a reporter’s privilege, 40 states have passed shield laws. Some may prefer legislation about reporter’s privilege at the state level. State level shield laws can account for cultural and geographic differences and conform more to the culture of the state.

The vast variety in state shield laws, however, can make things very difficult for reporters who plan to travel anywhere outside their home state to cover a story. Theoretically, a reporter would be responsible for knowing the specific laws in each state he or she covers news in. This could place an undue burden on the reporter and can hinder or discourage him from branching out and covering stories outside of his home state. Adding more to the confusion is the question of who legally qualifies as a journalist and can enjoy protection under state shield laws.

University of Oregon Professor Kyu Ho Youm wrote a brief editorial for the New York Times website following an Oregon judge’s December 2011 determination that a blogger did not qualify for shield law protection. Youm noted that a First Circuit court in a recent decision declined to dispense First Amendment protections on “professional credentials or status” alone.

“The federal court ruling reinforces the judicial reluctance to read bloggers and other journalistic outsiders (“outliers”?) into state shield law,” Youm wrote. “Judges are more likely to continue with their traditional journalist-oriented approach to source protection unless their state laws are ambiguous enough to allow them creative interpretations.”

Lack of a federal shield law and its effects on press freedom

Government, the courts in particular, is very defensive of free speech and press, uncommonly so compared to other democratic countries. The framers of the Constitution considered prior government intrusion, particularly prior restraints and licensing schemes, as the worst infringement of First Amendment rights (as discussed in Nebraska Press Association v. Stuart). However, the focus on prior restraint leaves the door wide open for punishment of speech and press after the speech is spoken or words are printed. Criminal punishments after the fact could almost be construed as counter to the freedom of the press as prior restraint.

In particular, journalists who use confidential sources to expose government corruption or wrongdoing could face sanctions if they refuse to disclose their sources in front of a grand jury. Though 49 states currently have shield laws or case law protecting the journalist’s privilege to protect his source, there is no shield law on the federal level.

The U.S. Supreme Court rejected the idea that journalists have more freedom than private citizens in the 1972 case of Branzburg v. Hayes. A Kentucky reporter conducted interviews with marijuana growers, witnessing their illicit activities firsthand. He wrote a story about it and kept his sources’ names confidential, refusing to give up their identities to a grand jury. A Kentucky appeals court found that the then Kentucky shield law would allow a reporter to protect an informant who told the reporter about alleged illegal activity, but would not protect the reporter if he witnessed the illegal activity himself.

The Supreme Court consolidated Branzburg’s appeal with two other cases, both having to do with reporters seeking a First Amendment reporter’s privilege to not disclose the identities of their sources. In a 5-4 ruling, the court said that a reporter’s privilege does not exist as a constitutionally guaranteed right. Quoting Zemel v Rusk, the court said that “[t]he right to speak and publish does not carry with it the unrestrained right to gather information,” and that the government’s interest in convicting criminals outweighs a reporter’s interest in protecting his sources. The court adamantly insisted that journalists do not enjoy greater rights than any average private citizen.

“We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy,” Justice White wrote for the court. “This we decline to do.”

Even though the case is from the 70s, the justices foresaw another major issue with shield laws: who exactly meets the definition of the press. Said the court, “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”

University of Georgia Professor William E. Lee observed in a recent Cardozo Arts & Entertainment Law Review article that the court has been consistent in its equal application of speech protections. The 2010 Citizens United decision, he wrote, made media and non-media corporations’ speech equal before the law. Like the court in Branzburg, he noted a federal shield law would encounter this same difficulty of defining who a journalist is:

In the first Citizens United oral argument, Justice Scalia facetiously asked if the term press meant people wearing fedoras with a ticket saying ‘Press’ in the hatband … the fedora definition of a journalist, however, is no more outdated and limiting than the definitions contained in many state shield laws. Defining who is entitled to coverage under a shield law is a most vexing problem.

To resolve this issue, Lee looked to a proposed shield law from a few years ago that did not ultimately pass, the Free Flow of Information Act, as a good guide to defining a journalist. Under that failed bill, a journalist would enjoy a reporter’s privilege if he regularly gathers information, conducts interviews, and disseminates reporting by print, broadcast or other forms of media, all with the intent “to disseminate the public news.”

The bill ultimately failed because President Obama announced that his administration would take a harder line against government leakers of information and because of Wikileaks’ release of thousands of classified documents in 2010 that many found concerning.

Lee seemed pessimistic about the chances of a federal shield law in the near future. Instead, he pointed out that the Department of Justice’s policy to subpoena reporters as a last resort serves as an informal but most secure way currently possible of protecting a reporter’s privilege.

Society of Professional Journalists President Christine Tatum advocated some years ago the passing of the Free Flow of Information Act on the Society’s website. She wrote:

Many of the biggest investigative stories of our age have been based in part on information shared with a reporter by someone who wanted to keep his or her identity a secret. Anonymous sources handed over the Pentagon Papers and unmasked the culprits behind Watergate and Enron. They have outed some of the nation’s worst corporate polluters. They have helped inform Americans’ debates about the Iraq War, the proliferation of nuclear weapons and global warming.

Yes, sources almost always have an agenda when they speak up, but sometimes they have information of vital interest to the general public and much to lose if they’re caught passing it along. If journalists can’t protect their sources’ identities, you will be much less informed about the world.

Press access to the criminal courtroom and the right to a public trial

The courtroom has long been regarded as a place that should be open to the general public. American journalists have reported on court proceedings since the early years of the county’s existence.

Perhaps the case that best epitomizes the free press-fair trial conflict is the 1976 case of Nebraska Press Association v. Stuart. A Nebraska trial judge, recognizing that a man on trial for the murder of a family of six and a sexual assault of one would face extreme bias due to the nature of his crimes, ordered a gag order on all members of the Nebraska press. The court order prohibited Nebraskan journalists from printing about the defendant’s prior confession to the crime or even anything “strongly implicative” of the accused’s possible guilt. The order also forced all news media to comply with the Nebraska Bar Association’s Bar-Press guidelines.

A Nebraska appeals court and the state supreme court both upheld the gag order, though the state supreme court narrowed its provisions. The gag order expired once the voir dire process was complete and the jury had been seated.

By the time the Nebraska Press Association’s appeal reached the U.S. Supreme Court, the trial had long been over and the defendant found guilty and sentenced to death. The U.S. Supreme Court decided to hear the case, however, because there was a high chance of a nearly identical situation arising in the future.

In a rare unanimous decision, the Supreme Court overturned the ban entirely, taking a firm stance that prior restraint is “presumptively unconstitutional,” as it had determined decades before in the landmark case of Near v. Minnesota.

Though both press freedom and the right to a fair trial are constitutionally guaranteed and are therefore fundamental and automatically incorporated in state constitutions (by Gitlow v. New York and Duncan v. Louisiana, respectively), the Constitution does not provide guidance as to which is could be considered “more” fundamental. As the court observed in Nebraska Press Association: “It is unnecessary, after nearly two centuries, to establish a priority applicable in all circumstances. Yet it is nonetheless clear that the barriers to prior restraint remain high unless we are to abandon what the Court has said for nearly a quarter of our national existence and implied throughout all of it.”

Calling prior restraint “the most serious and the least tolerable infringement on First Amendment rights,” the court concluded that protection against it should have “particular force as applied to the reporting of criminal proceedings.”

Like in Sheppard v. Maxwell, the court advised alternative measures the trial judge could have taken before going right to suppressing the press, such as a change of venue, delay in trial, extra precaution during voir dire and clear, strong jury instructions.

In 1980 the issue of constitutionality of press access to the criminal courtroom once again arose in the case of Richmond Newspapers v. Virginia. At issue was a blanket ban on press access to the trial of a defendant undergoing his fourth trial for the same offense (his other trials had been declared mistrials or remanded by appeals courts for new trials). The ban appeared to work, as the judge in the fourth trial dismissed the jury and acquitted the defendant.

However, local press appealed the ban on access to the court room, and the U.S. Supreme Court agreed to hear the case, ultimately ruling that the right to a public trial is a fundamental right that the trial judge had outright denied.

The court discussed the lengthy history of the public trial. The public trial isn’t just American or British in nature, but in fact a long Anglo-American tradition. Before the Norman conquest of England, trials were open to the public. The court also quoted written accounts of open trials as far back as 1313. Likewise, the public trial was an important part of colonial justice systems.

“As we have shown, and as was shown in … the Court’s opinion … the historical evidence demonstrate conclusively that, at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open,” wrote Chief Justice Warren Berger in the opinion for the court. “This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial.”

Berger also noted in his opinion that the public nature of a trial made it seem fair, promoted governmental transparency and prevented outraged citizens from trying to stage any kind of vigilante attack on a person accused of an especially heinous crime that might incite a community to violence.

The right to attend criminal trials is implicit in the First Amendment, and the right to a public trial is explicitly stated in the Sixth Amendment. Therefore, the court ruled the ban on press access to the criminal courtroom had been unconstitutional.

Other cases that followed widened media access to other proceedings in the criminal trial process: the 1984 case of Press-Enterprise v. Superior Court (also known as “Press Enterprise I”) cleared the way for access to criminal jury selection, and in 1986, Press-Enterprise v. Superior Court (known as “Press Enterprise II”) did the same for journalists’ access to criminal preliminary hearings. In 1984 the U.S. Supreme Court acknowledge in Waller v. Georgia that press access extends to suppression hearings.

Sometimes interests of defendants and interests of the press align. Such is the case in the concept of the right to a public trial. Said the court in Waller, “[T]he explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.”

This reflected the earlier sentiment in Richmond Newspapers v. Virginia: “[A] trial courtroom also is a public place where the people generally – and representatives of the media – have a right to be present,” the court said, “and where their presence historically has been thought to enhance the integrity and quality of what takes place.”

Early broadcast journalism and the trial courtroom of the ’60s

The ’50s and ’60s were a strange time for courtrooms. The emergence of broadcast journalism changed the way people got their news. In 1961, the U.S. Supreme Court marveled in Irvin v. Dowd at how the media, broadcast in particular, had changed the way the public approached a criminal trial: “In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”

It was virtually impossible to find jurors who hadn’t heard of a particularly high-profile case. Trial judges retained power over trial participants but sometimes failed to exercise those powers, resulting in unfair trials for defendants.

In 1963, the U.S. Supreme Court determined in Rideau v. Louisiana that a Louisiana trial judge had improperly denied a defendant’s motion for a change of venue. Defendant Wilbert Rideau had kidnapped three people and killed one in his 1961 attempt to rob a bank. When he was brought in for arrest, police videotaped Rideau’s confession. Shortly after, local news stations broadcast the tape on three separate occasions, reaching about 106,000 viewers in the area. The court noted that, during his confession, Rideau did not enjoy the right to counsel, and the broadcasting of his confession led to a trial by media and “kangaroo court” proceedings that violated his right to a fair trial.

Two years later, the Supreme Court overturned a swindling charge in Estes v. Texas because of press coverage of a pretrial hearing with about a dozen cameras covering the whole courtroom. The court noted that the presence of cameras in the trial courtroom changed the atmosphere – the defendant, judge, jury and witnesses become more self-conscious and focus on the cameras staring at them rather than the facts and trial at hand.

The court called the right to a fair trial “the most fundamental of all freedoms” and ruled that proof of just the appearance of prejudice is enough to deem a trial unfair. This extended the prior rule of the defendant having to prove prejudice during trial for his appeal to be successful.

Again the court commented on the rapid technological changes the media had faced in the last few years.

“It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials,” Justice Tom Clark wrote in the majority opinion. “But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore reversed.”

In the 1966 case of Sheppard v. Maxwell, the court again threw out a conviction because a defendant had suffered an extremely unfair trial due to media coverage and the faulty discretion of the trial judge. Dr. Sam Sheppard had been convicted in 1954 of murdering his pregnant wife. At trial, the judge was up for reelection in a few weeks and was going to run against the prosecutor of Sheppard’s case.

What followed was a mockery of the trial process: At a public inquest hearing shortly after his arrest, police officers searched Sheppard in front of a huge crowd in a gymnasium, held at that location to account for all the cameras and reporters. Later on, in the tiny courtroom where Sheppard was tried, the trial judge delegated most of the seats to members of the press, saving only the last row of seats for families of the defendant and victim. The trial judge allowed a long table to be put in front of the bar that normally separated formal court proceedings from the spectating public, and from there cameras bowed down on the defendant and the jury.

Accusations of poor character, numerous extramarital affairs and a child with one mistress lined the headlines of nearby newspapers, but the trial judge did not dismiss jurors who admitted to hearing the claims. During deliberations, jurors were allowed to make unmonitored phone calls despite being sequestered.

The Supreme Court ruled 8-1 for Sheppard and noted that the trial judge should have done more to control his courtroom, by sequestering jurors and witnesses and not allowing as many cameras, or indeed any, into the courtroom – or at least not in front of the bar, an unprecedented move.

A half-century later, Sheppard’s son Sam Reese Sheppard failed to convince a jury of his father’s innocence and lost a civil lawsuit based on wrongful imprisonment.

It is cases like these that remind media professionals the possible ramifications of overstepping bounds, sensationalizing cases and not behaving ethically.

Writes Marah Eakin of Ohio University, “[J]ournalists cannot allow themselves to be driven by their gut reaction and popular hunger for gossip – they must think through their decisions and report only what is ethical and just. Cases like the Sheppard trial allow journalists to learn from past mistakes to create a better reputation for the future.”

An Introduction

The freedom of the press. The right to a fair trial. Both constitutionally guaranteed; both of equal import. When they two conflict, how can courts or others resolve the tension between them?

Pretrial publicity of high-profile criminal cases can bias jurors against the accused, making his or her trial unfair. Yet the First Amendment protects pretrial publicity. The Supreme Court confirmed its presumption of constitutionality in the ’70s, making it extremely difficult, but certainly not impossible, for a judge to issue a gag order of the press. There are other indirect methods of restricting press access to the courtroom that judges can use.

Judges, rather than silencing the media, can impose gag orders on court officials and involved parties if they want to control what goes to the press. If, for example, a lawyer leaks something to a reporter on the condition of anonymity, the judge can subpoena the reporter and demand to know the source of the leak. If the reporter stands by his word and refuses to give up his source, he may be sent to jail or otherwise sanctioned. Grand juries may also compel journalists to testify if they have witnessed the commission of a crime firsthand.

While 49 states have laws or judicial rulings that provide some protection to journalists, there is no federal law or Supreme Court precedent that safeguards the reporter’s right to maintain the confidentiality of his source. Post-publication sanctions on reporters could discourage them from writing about high-profile criminal cases. Some argue that gag orders on court officials have become an indirect way of preventing media coverage of criminal cases.

Apart from arguably indirect press restrictions, challenges to the legitimacy of press coverage of criminal cases are common. Despite 40 years of presumptive constitutionality, defendants still appeal convictions on claims of juror bias due to media coverage.

In 2010, for example, former Enron executive Jeffrey Skilling’s appeal based on juror bias made it all the way to the U.S. Supreme Court. In September 2012, convicted murderer and kidnapper Christian Karl Gerhartsreiter, known under his alias “Clark Rockfeller,” appealed his conviction in a Massachusetts appeals court; his appeal was based upon juror bias due to pretrial publicity. A district attorney challenged Quincy-based group Open Court’s freedom to film proceedings in Quincy District Court this past summer.

Even though pretrial publicity enjoys constitutional protection, it remains an issue today, through both challenges from defendants and indirect restriction of press freedom in gag orders of involved parties. Exposure to pretrial publicity can prejudice jurors. On the other hand, the cost of restricting press freedom could outweigh any benefit to society through protecting the accused.

What, then, is the resolution to this struggle?

That’s the thing I’m aiming to find out over the course of the Spring 2013 semester. It’s the main point of my directed study project under the supervision of Northeastern Assistant Professor of Journalism Dan Kennedy.

For now, let’s say the jury’s out on this one.