Under the United States Constitution, there has always been tension between the right of a criminal defendant to a fair trial, untainted by excessive and prejudicial publicity, and the press’ right to report on criminal proceedings.
The landmark decision is Sheppard v. Maxwell, 383 U.S. 333 (1966). That case involved Dr. Sam Sheppard who was convicted of murdering his wife and children under sensational circumstances, and who claimed that he was unfairly convicted based on excessive and prejudicial pretrial publicity. In reviewing Sheppard’s conviction, the Court began by emphasizing the importance of a free press to society, as well as to the criminal justice process, noting that the ‘‘press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.’’ However, the Court also recognized that every criminal defendant is entitled to a fair trial and that freedom of speech (especially excessive reporting) has the potential to subvert the criminal justice process. The Court held that the criminal justice process is subverted when there is a violation of the ‘‘requirement that the jury’s verdict be based on evidence received in open court, not from outside [sources].’’ In other words, defendant was entitled to have his or her case tried by the jury without the effect of excessive and prejudicial pretrial publicity. In Sheppard, the Court found that defendant’s rights had not been sufficiently protected, because ‘‘bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard.’’ Throughout the preindictment investigation and the nine-week trial, ‘‘circulation-conscious editors catered to the insatiable interest of the American public in the bizarre.’’ In this atmosphere of a ‘‘‘Roman holiday’ for the news media, Sam Sheppard stood trial for his life.’’
After Sheppard, even though the courts had the duty and obligation to mitigate the effects of publicity on the criminal justice process, it was unclear how that objective was to be accomplished. In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), in a highly sensational murder case, the trial judge became concerned that ‘‘because of the nature of the crimes charged in the complaint that there is a clear and present danger that pretrial publicity could impinge upon the defendant’s right to a fair trial.’’ In an effort to limit the impact of the publicity on the trial, the judge entered a gag order restraining the press from publishing or broadcasting accounts of confessions or admissions made by the accused or facts ‘‘strongly implicative’’ of the accused. However, the U.S. Supreme Court concluded that the trial court had gone too far. The Court emphasized the importance of the press to the criminal justice process, noting that a ‘‘responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field.. . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.’’ In addition, the Court emphasized the importance of a free press noting that it had ‘‘learned, and continue to learn, from what we view as the unhappy experiences of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficent-sounding the purposes of controlling the press might be.’’
In Nebraska Press, the Court did not rule out the possibility of a gag order in a criminal case. However, it concluded that a much stronger showing of necessity must be made. In deciding whether to grant a gag order, the trial court must consider three factors: ‘‘(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.’’ Although the Court concluded that the Nebraska Press case involved significant danger of excessive pretrial news coverage, it concluded that there was insufficient evidence regarding whether alternatives to a gag order might not be sufficient.
After the holding in Stuart, it has been widely recognized that courts should avoid entering gag orders restricting trial coverage and should instead use other means for protecting defendants against the possible adverse impact of prejudicial trial publicity. These other measures, originally cataloged in Sheppard but reaffirmed in Stuart, include the following. First, the trial court can order a change of venue when the glare of publicity is too great. In a locale that is removed from the publicity, the court is more likely to be able to seat an unbiased jury, and the defendant is more likely to receive a fair trial. Second, the court can postpone a defendant’s trial until press interest is less intense and public attention has sufficiently subsided. Third, as part of the voir dire process, the trial judge and the attorneys can ask searching questions of prospective jurors in an effort to screen out jurors who have been unduly prejudiced by pretrial publicity. Fourth, and additionally, a trial judge can provide the jury with clear and emphatic instructions regarding their duty to disregard media speculation and to decide the case based only on evidence presented in open court. Fifth, in an appropriate case, the trial court can sequester jurors to insulate them against the effects of publicity. In other words, courts must strive to maximize the possibility of press coverage while using other methods to protect the defendant’s right to a fair trial.
RUSSELL L. WEAVER
References and Further Reading