Pretrial Publicity

Abstract

Pretrial publicity (PTP) refers to media coverage of criminal and civil cases prior to trial. Every era has its high-profile cases involving individuals and businesses—e.g., Roger Stone, Paul Manafort, Dzhokhar Tsarnaev (Boston Bomber), Enron, Timothy McVeigh, O. J. Simpson, John Hinckley, Patty Hearst, John Mitchell, Sam Shepperd, Bruno Richard Hauptmann (Lindbergh baby kidnapping), Sacco and Vanzetti. Serious and notorious crimes and cases involving celebrities tend to receive the most media attention. Much media attention will operate to the detriment of criminal and civil defendants—reporting may emphasize the dastardliness of the defendant’s actions, the effects of those acts on victims, the evidence against the defendant, opinions about the defendant’s guilt expressed by law enforcement personnel, and the like. Whenever a case receives substantial PTP—and especially when the PTP is negative—questions arise about the likelihood that a defendant can receive a fair trial. The concern is that the substantial PTP will bias prospective jurors against the defendant and result in a verdict driven by PTP rather than trial evidence. Concerns about the media potentially biasing trials pit First Amendment guarantees of a free press against Sixth Amendment rights of defendants to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Of course, if media coverage has been substantial and negative, a number of questions arise: has the deck been stacked against a defendant? To what extent? How can this be proven? If there is improper bias, what are the solutions—delay the trial? Give the defendant expanded opportunities to find unbiased jurors? Rely on judges to instruct jurors to put aside their biases (and rely on jurors to do so)? Change the trial to another venue—if there is one where the PTP has not been so voluminous or negative? A substantial body of empirical research has developed over the past fifty years that seeks to answer such questions and do so using reliable research methods.