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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.
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 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.