Balancing Freedom of the Press and the Right to a Fair Trial - Term Paper Example

?Balancing Freedom of the Press and the Right to a Fair Trial By Balancing Freedom of the Press and the Right toa Fair Trial The 1st Amendment to the US Constitution guarantees unrestrained press and free expression (US Constitution, 1st Amendment). At the same time, the 6th Amendment to the US Constitution guarantees that all persons facing criminal prosecution will receive a fair trial by an impartial tribunal of fact (US Constitution, 6th Amendment). With the growth of the mass media, the relationship between the criminal trial process and the media is complex (Carroll, Kerr, Alfini, Weaver, MacCoun & Feldmen, 1986). On the one hand the press not only act as an observer and recorder of the trial, but on the other hand, the press can present a distraction which can compromise the defendant’s right to a fair trial (Pugsley, 1997). The main purpose of the 1st Amendment’s freedom of the press and free expression is to provide safeguards against “restraints” in publications and to promote the concepts of transparency and accountability (Erickson, 1977, p. 486). The main purpose of the 6th Amendment’s right to a fair trial is to ensure that persons facing prosecution have an opportunity to defend that charge and to test the evidence presented by their accusers. This automatically means that the trier of fact is impartial. In reality however, permitting an unrestrained/free press may compromise the defendant’s right to a fair and can create obstacles to having an impartial jury (Erickson, 1977). Thus, there can be tensions between the right to a fair and impartial adjudication process and the right to free/unrestrained press. Conflicts arise between the right to a fair and impartial adjudication process and the right of free/unrestrained press and free expression when unrestrained/free press and free expression compromises the defendant’s right to a fair trial. For example, publicity prior to trial and during trial may involve the publication of information that is not admissible as evidence in a trial (White, 1995). This is important because the right to a fair and impartial adjudication means that the defendant is entitled to a fair and impartial jury/trier of fact that will only consider the evidence submitted at the hearing. However, when inadmissible evidence is available to the jury by virtue of the press either during prior to the trial or during the trial, it is unrealistic to expect that the jury will be able to totally ignore external sources of information. Over the past several years, the US Supreme Court has decided a number of cases involving the effects of publicity before and during a hearing on the defendant’s right to a fair and impartial adjudication process (Curry, Riley, & Battistoni, 2003, p. 462). In doing so, the US Supreme Court has provided valuable guidance for trial judges to follow to provide a reasonable balance between the right to a fair and impartial adjudication process and the right to free/unrestrained press. One popular pre-trial mechanism is a change of venue. However, the US Supreme Court has emphasized that a change of venue will not automatically be necessary because of frequent or prejudicial reports in the media indicating the defendant’s culpability or guilt. The determining factor is whether or not it is possible to empanel a jury that is capable of listening to and evaluating the evidence impartially (Neitzel, 1999). Another safeguard against the potential prejudicial effects of media reports prior to a trial is for a continuance/adjournment. It is believed that a continuance/adjournment may allow for the prejudicial information to die out. However, psychologists do not believe that delaying a trial will have an appreciable effect on the ability to recall particularly unpleasant facts (Nietzel, 1999). Moreover, delays can have an impact on the integrity of the evidence and can unfairly prejudice either the defendant of the state’s right to a fair and impartial adjudication process. For example, eyewitnesses may have difficulties recalling the events or evidence can be lost or eroded with the passage of time. Moreover, the defendant’s right to a fair trial includes the right to a have the case heard quickly. Delays may compromise this right. Therefore, a continuance/adjournment may not be a viable method for balancing the right to a fair trial and the free/unrestrained press. The most effective way for dealing with the prejudicial effects of publicity before the trial is the voir dire proceedings (Nietzel, 1999). Standard 3.5 of the American Bar Association’s Fair Trial and Free Press (1992) provides that in cases where there is prejudicial pre-trial publicity, a voir dire should be conducted in which each prospective juror should be examined to determine the extent to which they have been exposed to that publicity. The court is required to take into account the putative juror’s bias in claiming they can be impartial despite having heard or accessed prejudicial information previously. The court must also take into account the nature of the information and the extent to which the putative juror was exposed to it (American Bar Association Fair Trial and Free Press, 1992, Standard 3.5). It is difficult to make an assessment of a putative juror’s claim that he or she will be able to decide the facts of the case impartially despite prejudicial press prior to the start of the trial. For example, a putative juror may appear to be entirely honest when making the claim that he or she can be objective and impartial when in reality, they may have already made up their minds. However, it is also entirely possible that once a juror takes the oath to render a true verdict the jurors take their civic duties very seriously. Once jurors are selected and the trial begins, they become a part of the justice system and they are able to distinguish between admissible, relevant evidence and inadmissible and irrelevant pre-trial publicity. Courts are also advised to exercise caution in instances where pre-trial publicity has been “highly prejudicial” (American Bar Association Fair Trial and Free Press, 1992, Standard 3.5). In other words, where pre-trial publicity has been significantly prejudicial the voir dire is designed to prevent jurors who may have been exposed to this type of publicity and have obviously retained this prejudicial information qualifying and serving on the panel. However, in today’s information society, pre-trial publicity is no longer localized and with the use of the internet and social media, pre-trial publicity is available to everyone who has access to the internet or who has cable television. It is therefore impossible to judge the impact of pre-trial publicity on a prospective juror on the basis of mere exposure to the publicity. The voir dire is designed to go beyond mere exposure by examining the prospective juror on their ability to remain impartial despite exposure to pre-trial publicity. Judges may also issue gag orders designed to limit the extent to which the press may publish information relative to a trial in which a jury is participating. The gag order takes account of the possibility that jurors can be influenced by stories that they read or hear about the case that they are involved in. During the 1970s judges issued gag orders almost routinely. However, the US Supreme Court ruled that gag orders violated free/unrestrained press. It was ruled that even where pre-trial publicity was particularly prejudicial it did not necessarily mean that the defendant could not have a fair hearing. Some of the US Supreme Court judges even went so far as to state that constraining the press could never be justified in a democratic society (Schmidt, Shelley, Bardes, & Ford, 2012). The US Supreme Court, did not ban gag orders altogether. For example, the US Supreme Court has ruled that a gag order could be made where there was a fairly certain expectation that the defendant’s right to a fair adjudication process will be compromised (Schmidt, et. al., 2012, p. 142). However, this rule is only applicable to pre-trial publicity and it becomes questionable whether or not a judge can make a gag order for an actual trial since members of the public have a right to observe trials (Schmidt, et.al., 2012). Judges do however, place gag orders on prosecuting and defense attorneys to prevent injustices and to safeguard against either side prosecuting or defending their cases in the press and indirectly influencing the jury. For example a gag order may be necessary to prevent an attorney for either side disclosing inadmissible evidence to the press with the result that evidence that may not be heard by the jury is published and brought to the jury’s attention (White, 1995). This of course effects the attorney’s right to free expression but it may be seen as necessary since they are involved in the trial and have an interest to serve by participating in publicity outside of the court room. Since attorneys for both side also have a duty to ensure the integrity of the proceedings, gag orders and freedom of expression must be weighed against this duty. Other methods used for balancing the right to a fair trial and the freed/unrestrained press is the closed proceedings. In this regard, in cases where hearings are conducted to determine the admissibility of evidence, those hearings are usually closed to the press or held in the judge’s chambers. Where those hearings are open to the press jurors are warned not to read or watch any news or stories about the case (Nagel & Nam, 2001). Whether or not jurors can be realistically trusted to avoid press reports on the cases that they are participating in is questionable. Even so, the practice of admonishing jurors is prevalent throughout the US (Nagel & Nam, 2001). Perhaps the most effective most effective method for ensuring free press and at the same time safeguarding against the risk of abridging the defendant’s right to a fair hearing is sequestration. Sequestration occurs when the jury is required to reside at one location usually a hotel, for the duration of the trial and their access to media publications are monitored by sheriff’s deputies (Nagel & Nam, 2001). While this may be difficult for jurors it ensures that the press has no restraints and the defendant is at least assured that the jurors will not be exposed to prejudicial information about the case. Bibliography American Bar Association’s Fair Trial and Free Press 1992. Carroll, J.S.; Kerr, N.L.; Alfini, J.J.; Weaver, F.M.; MacCoun, R.J. and Feldman, V. (September 1986). “Free Press and Fair Trial: The Role of Behavioral Research”. Law and Human Behavior, Vol. 10(3): 187-201. Curry, J.A.; Riley, R.B. and Battistoni, R.M. (2003). Constitutional Government: The American Experience. Kendall/Hunt Publishing Company. Erickson, W.H. (Feb. 1977). “Fair Trial and Free Press: The Practical Dilemma.” Stanford Law Review, Vol. 29(3): 485-496. Nagel, S.S. and Nam, J. (2001). Promoting Peace: Via Legal and International Policy. Lanham, MD: Lexington Books. Neitzel, M. (1999). “Legal Surveys.” In, Abbott, W.F. and Batt, F. (Eds.) A Handbook of Jury Research. The American Law Institute. Ch.6. Pugsley, R.A. (1997). “This Courtroom Is Not A Television Studio: Why Judge Fugisaki Made the Correct Call in Gagging the Lawyers and Parties, and Banning the Cameras from the O.J. Simpson Civil Case.” Loyola of Los Angeles Entertainment Law Journal, Vol. 17: 369-382. Schmidt, S.W.; Shelley, M.C.; Bardes, B.A. and Ford, L.E. (2012). American Government and Politics, 2011-2012. Boston, MA: Wadsworth. US Constitution. White, M. (Fall 1995). “Fair Trial, Free Press: Can They Coexist?” Human Rights, Vol. 22(4): 6-7. Read More