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Language: English Copyright: Use this collection of over 60 primary documents to trace the evolution of trial rights from English and colonial beginnings When murder is the crime, the clash in the courts is likely to be between two constitutionally enshrined rightsfreeshy;dom of Intended for the general public, the readings in this collection explore the roots of American law from pre-history to ancient This volume takes a historical approach in analyzing all of the major United States Supreme Court cases relevant to the Please note that the Lexile measures for a small population of books have been recently updated.

Enhancements were made to more precisely measure materials read in K-2 classrooms. Although the vast majority of books that have Lexile measures did not change, a small subset of books required updated Lexile measures. Many products and services offer Lexile measures for their books and reading materials. These classifications are publicity relating to either the strength of the state's case or the guilt of the accused, where that information is procured or cooperated in by law enforcement authorities, the testimony of witnesses not offered by the prosecution at trial, evidence which would have been inadmissible if offered at trial, information which makes trial jurors into celebrities, and publicity charging guilt or attacking the character of the accused.

In the courtroom, the press has the right to record the proceedings and pass the information gathered there on to the public, as all proceedings are matters of public record. As noted above, the press generally has access to every proceeding to which the public is admitted, and only in cases where there is a strong showing of imminent harm to the defendant's right to a fair trial will there be cause of a judge to close the courtroom to protect the defendant's Sixth Amendment rights.

Rules can be promulgated to ensure that admitting the electronic media does not "interfere with the rights of the parties, diminish the dignity of the court, or impede the orderly conduct of the proceedings.

By televising trials, Steven Brill has said, the media are forced to be more accountable for what they report. Because the public can access testimony from the trial by watching it on television, both print and broadcast reporters are allegedly forced to adhere to what actually was said in court, rather than paraphrase testimony and provide opinions as to demeanor. Brill says that journalists should adhere to a Code of Professional Responsibility which is adhered to on a voluntarily basis, as the First Amendment prohibits the state or federal government from mandating adherence.

The elements laid out in this code all discuss things which a reporter now can do, with no fear of repercussions under the law, because it would be unconstitutional for the legislatures to prevent the reporters from exercising their rights to Free Speech and a Free Press. Some "commandments" in the Code are as follows:. A journalist should always use language and information that is as exact as possible and as firsthand as possible, and never make it seem more exact or firsthand than it is. A journalist should always be candid about the quality and certainty of his or her information.

Under the banner of "the public's right to know," journalists should not fail to balance the importance of what they want to report with the negative consequences of reporting it. At present, journalists are not prohibited from reporting exaggeration, extrapolation, association, falsities, opinion, hyperbole, inaccuracies or other information which could be detrimental to a defendant's right to a fair trial, as long as the information they are reporting is not libelous, and is obtained through legal means.

For example, in the OJ Simpson case, no reporter felt judicial repercussions after reporting that a bloody ski mask was found at Simpson's home. Nor were any penalized for reporting the untrue statements regarding the DNA of the victims, although some reporters were chastised by Judge Ito for continuing to report that story, even after he said that it was untrue. The judiciary, the bar and the press have attempted to develop a voluntary solution to the problems related to prejudicial publicity, although the receptiveness of the parties has varied over time.

Because of Supreme Court decisions in favor of the news media, the only actions for a judge to take, barring an obscene situation involving significant adverse publicity, are to argue for the press's self-restraint, protect the jury, and to beg for compromises from the press on coverage. In the Sheppard case, the jury pool was poisoned by pretrial and contemporaneous publicity of false information, inadmissible evidence, and irresponsible actions by the press. In his opinion for the Court, Justice Clark discussed actions a judge can take to protect the jury pool from contamination, protect the defendant's right to a fair trial, and not infringe the rights of the press to report, and of the participants to speak.

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The judge could limit the number of journalists in the courtroom, because of space constraints, and to ease regulating the decorousness of their behavior in a way in keeping with courtroom tradition. The judge can control the release of information to the press by officers of the court, officers of the law, and city and county officials, by ordering them not to discuss topics such as the refusal of a defendant to submit to interrogation, refusals to take lie detector tests, the identity of possible witnesses or their probable testimony, or any belief in guilt of innocence.

He or she also can warn reporters to check the accuracy of their news reports, and point out the impropriety of publishing material not introduced in the proceedings to reporters who wrote or broadcast prejudicial stories. The case can either be continued until the threat of prejudicial pretrial publicity abates or dies out, or be moved to another county where the level of publicity is less than in the county where the crime occurred. The jury can be sequestered, or denied access to press reports about the case, and, if all else fails, a new trial can be ordered when it appears that the integrity and fairness of the present trial is threatened.

There are risks inherent in eliminating jurors solely because they have a modicum of information about the case or the defendants, without screening for the affects the publicity has had on the jurors. Jeffrey Abramson has noted that in many recent cases, where either the publicity surrounding a case has not abated, or the judge has refused to allow a transfer for venue, so the juries in highly publicized trials, juries in trials which receive local or national publicity consist of people who are "disaffected and disinterested.

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First, many judges are frequently unwilling to seat, over defense objections, jurors who have been even slightly contaminated by press coverage. Second, the Court said in Murphy that jurors with some extrajudicial knowledge of a defendant's prior criminal record are necessarily capable of being impartial. Under Murphy, a defendant must prove that there was unconstitutional prejudice of an individual juror resulting from pretrial publicity, or prejudice of the overall community against the defendant.

As to individual jurors, this can be accomplished by relying on sworn affidavits by jurors which prove bad faith or untruthfulness in the voir dire process, or by examining voir dire transcripts for indications of deeply held prejudice or the strength of an opinion formed on extrajudicial evidence. A judge can advise journalists to refrain from publishing certain materials by either requesting the press avoid publication or by foreboding the press from publishing information which journalists have obtained through lawful means.

If the defense wants the judge to merely request that specific reporters or news organizations not publish material, the defendant need only show that without such action, a fair trial would be imperiled. The judge can independently decide that certain information would affect the court's ability to impanel an impartial jury, as Judge Ito decided when he asked Connie Chung, Larry King and Geraldo Rivera not to interview Faye Resnik about her book about Nicole Simpson.

The press can reject the judge's request, as Chung and Rivera did, or accede to it, as did King. The judge must examine the nature and extent of the pretrial coverage, determine whether measures other than prior restraints would be likely to mitigate effects of unchecked pretrial publicity, and demonstrate the effectiveness of a restraining order in preventing the threatened danger. Some courtrooms, including those featuring trials of juveniles, are traditionally closed to the public, as are in camera proceedings and some pretrial proceedings.

In those cases, the judge can likewise exclude the media, under the grounds that the media has no more right than the public to be present at closed door hearings. While there is no Sixth Amendment right of access to trials or pretrial proceedings, there is a common law and First Amendment interest in public trials;47 therefore, the Court discourages judges from closing courtrooms to protect the Sixth Amendment right of the defendant.

Denying access to pretrial proceedings is possible where there are "specific, on the record, findings demonstrating that closure is essential to preserve higher values and [the denial] is narrowly tailored to serve that interest. They include granting a continuance until pretrial publicity settles down, severing the issues so an entire pretrial proceeding does not have to be changed to protect the fairness of the trial, changing venue or venire, so the pool of jurors is uncontaminated, conducting an intensive voir dire to discover the impact of publicity on the attitudes of prospective jurors, granting additional preemptory challenges to allow the defense to dismiss more jurors exposed to pretrial publicity, sequestration of jurors and witnesses, and intense instructions to the jury throughout the trial, to warn them of the dangers of basing a decision on information heard outside the courtroom.

If a defendant or witness charges a reporter, a publication, or a broadcast or cable entity with libel, he can seek one of four remedies. First is an injunction, either before something has gone to press, or following publication, to remove something from later editions, is possible but are generally unavailable because of gradations of partial truth which are considered too subtle to be subject to blanket injunctions. Second is a right of reply, which gives the person alleging the defamation an opportunity to respond in his own words in the publication which reported the libelous remarks.

Miami Herald v. Tornillo noted, however, that a statutorily mandated right of reply can infringe on the First Amendment rights of the publication, as it forces the press to publish things which they would not otherwise choose to publish.

Free Press v. Fair Trial

Third is a right of retraction, which requires the defamed person to demand a retraction shortly after the defamation. Fourth is the right to financial damages, where the plaintiff recovers moneys in comportment with the damage done to his or her reputation. A judge has the option of placing restrictions on out of court statements made by officers of the court, and some judges have tried to prevent witnesses from making out of court statements as well.

Two problems with such gag orders have presented themselves. First, it was considered ineffective to silence the participants from on the record statements, because it resulted in leaks by both prosecutors and defense attorneys of information which would previously have been on the record. This has led to episodes where judges have held reporters in contempt of court and imposed other sanctions as reporters have refused to identify the sources.

In Chicago Council of Lawyers v.

Bauer, the court held that the local rules on out of court statements restricted the free speech of the lawyers, noting that foreboding lawyers from out of court comments about the case would be a reasonable action only where the comment would create a "serious and imminent threat to the administration of justice. The issue of whether recording the trial for television affects the defendant's right to a fair trial has been litigated in lower courts, but the Supreme Court has not yet ruled on what the affects are in a trial which is recorded by one small, allegedly unobtrusive camera.

Both prosecution and defense have complained about negative affects of cameras on witnesses and other courtroom participants, including the lawyers and the defendants,53 but, as the technology has become more and more accepted, cameras are generally considered a fixture in state courts, especially in highly publicized trials. However, critics charge that televising trials affects the participants during the trial, and can damage the jury deliberations and ability to come to the correct verdict. Many of the tests of whether cameras in the courtroom influence either the words and deeds in the courtroom, or alter the jury deliberations have been skewed by the people conducting the test, according to critic Paul Thaler.

In June, , a mistrial was declared in a Texas case where a woman had sued Texas police officers for arresting her during a protest. During a recess, a producer asked the jurors if she could interview them after the trial. The judge later said that "a juror looking forward to being interviewed on TV or being lambasted by another juror on TV might be less candid during deliberations.


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The jury in the Shepperd case, for example, was affected by the mood of the city against Shepperd, although no motion picture or video cameras recorded the testimony and other proceedings. In a Memorandum and Points and Authorities of Court TV in Opposition to Termination of Film and Electronic Coverage filed in November in the case of OJ Simpson, Court TV said that "[e]ven if the [out-of-court] reporting in this case [is] improper and tend[s] to prejudice the defendant, it is manifest that closing the trial [is] not the means to be employed to cure the prejudice or prevent a continuation of the impropriety.

Generally, however, the fact that a trial is recorded, and film of testimony is available for newscasts, tends to magnify the attention paid to the case in a way that might not otherwise occur where the television newscasts did not have access to videotaped testimony, suitable for editing into sound bite-laden news stories. Frasca, R. Estimating the occurrence of trials prejudiced by press coverage.

United States Supreme Court

Judicature, 27 , Freedman, J. Pretrial publicity: Effects of admonition and expressing pretrial opinions. Legal and Criminological Psychology, 3, The effect of pretrial publicity: The Bernardo case.