Pretrial publicity: The media, the law, and common sense.

Abstract

As media coverage becomes more extensive and accessible, it is likely to become more difficult to find jurors who have not been exposed to relevant pretrial publicity. Courts' assessments of the likelihood that pretrial publicity has resulted in prejudice against a defendant and of jurors' ability to disregard any prejudice are often based on judicial common sense and often reflect a misappraisal or misunderstanding of the capabilities and weaknesses of human inference and decision making. Therefore, social science evidence concerning pretrial publicity and its effects is crucial. Despite existing research, which consistently demonstrates that pretrial publicity can influence people's attitudes about a publicized case, information regarding the mediational processes by which pretrial publicity exerts its effects is still needed. To this end, this article proposes a multimethod research approach by which mediational mechanisms can be assessed. Issues concerning basic research as well as real-world applications are discussed.Article III of the U.S. Constitution provides that criminal trials shall be held in the state where such crimes have been committed. The Sixth Amendment of the Constitution provides as follows:"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."The Due Process Clause of the Fifth Amendment of the Constitution requires fundamental fairness in the prosecution of federal crimes. The right to an impartial jury in the Sixth Amendment and the fundamental fairness requirement of the Due Process Clause override the trial provisions in both Article III and the Sixth Amendment in extraordinary cases. That is the foundation for Fed. R. Crim. P. 21 (a), which provides for a change of venue to protect from prejudice. The rule reads as follows:"The court upon motion of the defendant shall transfer the proceeding as to that defendant to another district whether or not such district is specified in the defendant's motion if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district." Upon all of the evidence presented, this court finds and concludes that there is so great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court in that state. The court also finds and concludes that an appropriate alternative venue is in the District of Colorado.

Case studies of pre- and midtrial prejudice in criminal and civil litigation.

“…Simpson trial. Studebaker and Penrod (1997;Studebaker et al, 2000) reported that in the original Oklahoma City venue there were 939 articles published in the Daily Oklahoman between April 1995 and January 1996, that105 of them were on the front page, and that the stories were accompanied by 307…”

Decision Making by Juries and Judges: International Perspectives

“…Thus, judges rely (perhaps naively) on jurors' promises of fairness and impartiality despite their pretrial knowledge about the case (Moran and Cutler, 1991), and further presume that jurors will refrain from attending to publicity about the case during the trial. In both the US and England, judges typically rely on their 'common sense' to assess the effects of any potentially prejudicial pretrial knowledge (Studebaker and Penrod, 1997;Corker and Levi, 1996). Only rarely will a judge grant a request for a change of venue to a different location.…”

Pretrial publicity and civil cases: A two-way street?

“…Some of the more common remedies include changing the trial venue, gagging the press, using voir dire to select jurors with no exposure to PTP or to neutralize its effects, continuance, and judicial admonitions (Kramer et al, 1990;Studebaker & Penrod, 1997). Most of these remedies are either impractical-such as continuance, changing the venue, or selecting jurors with no exposure-or carry other adverse effects, such as restricting media rights.…”

“…In addition, the effects of negative PTP about both litigants were examined. Based on the robust nature of PTP effects in criminal cases (e.g., Steblay et al, 1999;Studebaker & Penrod, 1997), as well as the effects of inadmissible evidence in civil cases (Landsman & Rakos, 1994;Tanford & Cox, 1988), we hypothesized that exposure to negative PTP about either party would reduce mock jurors' verdicts for that party, relative to a control condition with no prejudicial PTP.…”