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Media coverage of criminal cases poses a dilemma. Press attention in criminal cases sometimes has significant benefits. Publicity can cause unknown witnesses to come forward so that their information may be considered and the facts correctly determined. It can also help to ensure that those administering the criminal process will act fairly by subjecting their decisions to public scrutiny. Media attention can also provide the stimulus for needed changes in the criminal process or, alternatively, the information by which the public can conclude that the system operates appropriately. Nonetheless, press coverage may sometimes pose grave problems. Publicity may cause some judges or prosecutors, particularly those who must face reelection, to act out of political expediency rather than fairness. It may inappropriately expose witnesses or other participants to reputational damage, along with threats and even reprisals. It can disrupt courtroom proceedings. Also, and certainly not least important, it can bias jurors, usually against the criminal defendant.
The decision to solve this dilemma by restricting the press from publishing information it possesses has been favored in some countries. In England, and several other countries of the British Commonwealth, the press may only safely report before trial the essential facts of arrest and charge and, during trial, a balanced and objective account of the basic proceedings on the record. To do more will risk a contempt citation and fine or even imprisonment if the accounts are deemed to pose a reasonable chance of influencing the fact finder. In rare situations, the press may even be restricted by judicial order from reporting factually accurate material that would otherwise be published without sanction.
In the United States, the dilemma is not so easily solved because the arguments both for and against press coverage are often of constitutional proportions. On the one hand, the First Amendment guarantees the freedom of the press, which includes reporting on criminal cases. On the other hand, the Sixth Amendment and the due process clauses in the Fifth and Fourteenth Amendments guarantee the criminally accused the right to a trial by an impartial jury. It is also now established that these provisions limit the states as well as the federal government.
The problem of accommodating the public’s right to a free press and the defendant’s right to an unbiased jury has long existed. For example, during the 1807 trial of Aaron Burr for treason, Chief Justice John Marshall of the U.S. Supreme Court, sitting as a trial judge, was forced to contend with defense claims that jurors had been biased by pretrial press accounts. Likewise, both the trial of Sacco and Vanzetti in 1921, for murder, and the trial of Bruno Richard Hauptmann in 1935, for the kidnapping and murder of the Lindbergh baby, raised serious concerns about whether jurors had been unduly influenced against the defendants by publicity.
Nonetheless, the problem of prejudicial publicity for courts has increased since the middle of the twentieth century due to the expansion of federal constitutional rights, including their extension to state criminal justice systems, and the advent and growth of television as a powerful and widely observed medium for news reporting. The press coverage of the prosecution of O. J. Simpson for the 1994 killings of his ex-wife and one of her friends demonstrated the potential problem. The publicity in the Simpson case, particularly by the television media, was unrivaled in American history, and that coverage included much information that was damaging to Simpson that was not admitted as evidence at the trial. Likewise, in the prosecutions of Timothy McVeigh and Terry Nichols, for the 1995 murders of dozens of people from the bombing of a federal office building in Oklahoma City, serious questions arose about how to protect the defendants’ constitutional right to an impartial jury in light of the intense and enduring television coverage not only in Oklahoma but throughout the country.
Despite the increasing magnitude of the problem of prejudicial publicity in criminal cases, the judicial response in the United States continues to reflect a high place for the First Amendment guarantee of a free press. Courts have gone far in assuming that biased jurors can be detected and excluded through the questioning process, called voir dire, that accompanies jury selection and, further, that those chosen as jurors can ignore publicity when told to do so by the trial judge. Where these protections are deemed insufficient, courts have also relied heavily on additional remedies designed to overcome prejudicial publicity rather than on remedies aimed at preventing publicity. Even where they have taken steps to limit publicity, courts have opted for measures that restrict the information flow to the press rather than measures that prevent the press from publishing information in its possession. The First Amendment has generally barred the use of direct limitations on the press’s power to publish information it has obtained.
Difficulty for The Trial Judge in Assessing Prejudice
Evaluating whether publicity is prejudicial is a subjective endeavor. The problem arises in only a small proportion of all criminal prosecutions. The vast majority of cases spark no serious press interest. In larger urban areas, even murders are sufficiently common that many will receive relatively little attention. However, a few criminal cases attract intense media interest, usually because of the fame of the defendant, the fame of the victim, or the unusually gruesome or salacious nature of the crime. When a case has received publicity, there is always potential that the accounts have reached some of the jurors. Assessing whether the stories have rendered them biased can be difficult.
First, the legal standard of ‘‘impartiality’’ itself connotes a highly speculative determination. What does juror impartiality mean? It obviously does not signify that a juror must come to the courthouse as an empty cipher, without political leanings, moral beliefs, or views about crime. Impartiality also does not mean that a juror must be ignorant about the case or have avoided forming an impression about the defendant’s guilt. The Supreme Court concluded long ago, in Reynolds v. United States, 98 U.S. 145 (1878), and has repeated many times, that an impartial juror is merely one who will base a verdict on the evidence presented at trial and the instructions of the trial judge. Prospective jurors who can put aside impressions about the defendant’s guilt and can ignore external information to which they have been exposed are deemed impartial. Social science evidence reflects disagreement about whether juries will follow a trial court’s instructions to ignore external information. Yet, many prospective jurors who have been exposed to external information, including powerful press accounts, will claim that they can abide by the impartiality standard. How should the trial judge decide when to believe them? Resolution of this kind of question involves much guesswork.
Measuring prejudice is particularly difficult when the assessment occurs weeks before trial, which is when claims of prejudicial publicity are typically first considered. At this stage, the trial judge often lacks good information about many factors that may bear on the prejudice inquiry. How many potential jurors may have seen or heard about the press accounts? With what level of interest have they followed the stories? Does the publicity reveal information that will not be admissible at trial? Does it give an undue emphasis to factors that would not be heavily emphasized at trial? Will the information in the news accounts accord with or conflict with a defense theory to be asserted? Assuming the publicity subsides, will the passage of time before the trial date cause jurors to forget much of the press accounts? The judge must often estimate the answers to these kinds of questions, because the prospective jurors have not been assembled for questioning, and the judge knows little about the trial evidence.
The determination involves much speculation even if delayed until the beginning of the trial. At this point, the judge can obtain information from potential jurors regarding the number who are aware of the publicity and the number who believe they could not ignore it. The judge still cannot easily assess, however, when jurors who assert that they can be impartial are being unrealistic. At this stage, the judge is also more likely to have ruled on the admissibility of some evidence subject to pretrial challenge, such as a confession by the defendant, and thus can know whether the press stories have exposed certain information that has been suppressed. However, the judge will likely remain only vaguely informed about much of the trial evidence and thus, will not know how much the press accounts will overlap with the government’s case or conflict with the defense theory. To the extent that the external information is not covered by the evidence and collides with the defense, it may be more difficult for jurors to ignore. This means that, even at the start of trial, the judge’s assessments of prejudice from publicity are imprecise.
Judicial Rules Governing Prejudice Assessments
The Supreme Court has dealt with the speculative nature of assessments of publicity through three rules that mean that the decision of the trial judge will usually be honored. First, the Court has held that juror-bias determinations are largely factual rather than legal so that the trial judge is in the best position to decide them; appellate courts have been directed to defer to a trial court’s finding on juror impartiality except in cases of clear error. Second, the Court has been grudging in its view of what constitutes evidence of prejudicial publicity. The Court has held that, except in extraordinary cases, publicity is not prejudicial unless a juror actually states an inability to ignore it. Third, the Court has held that trial courts need not ask potential jurors specifically about the content of relevant publicity to which they have been exposed, but rather may rely on more general questions about whether the jurors can be fair. These three rules together mean that a trial judge’s conclusion that a jury is constitutionally impartial will rarely justify reversal.
The Supreme Court has long held that appellate courts should generally defer to the trial judge’s finding on juror bias. The Court declared in Reynolds v. United States, 98 U.S. 145 (1878), that the factual nature of the inquiry justifies affirming the trial court’s conclusion except in cases of ‘‘manifest error.’’ In more recent times, in Wainwright v. Witt, 469 U.S. 412 (1985), the Court concluded that the impartiality question was purely factual, so that the trial court’s finding should not be overturned unless the conclusion lacks support in the record.
The Court has also been reluctant to find evidence of juror bias from publicity unless a juror actually admits an inability to ignore it. Court opinions during the era of Chief Justice Earl Warren reflected the view that prejudice from pretrial publicity may sometimes be presumed, despite claims by jurors that they can remain impartial. More recent opinions, however, imply that the Court will rarely be willing to find prejudice unless a juror admits bias during voir dire.
The view of the Warren Court was embodied in the opinions in Marshall v. United States, 360 U.S. 310 (1959), and Irvin v. Dowd, 366 U.S 717 (1961). Marshall was decided under the Court’s supervisory powers over the federal courts rather than as an interpretation of the Constitution. It held that jurors who have heard through the press of the defendant’s previous criminal record are ‘‘presumed to be prejudiced,’’ as this information would not typically be admissible in the government’s initial case at trial.
In Irvin, the presumption of prejudice was grounded on the Constitution and was triggered by a combination of factors. The trial was held in a rural county adjoining the county in which the crime had occurred. The pretrial publicity in the trial county was intense and sustained throughout the six months before jury selection. For example, the press accounts revealed that Irvin had been convicted of previous crimes, that he had been identified from a police lineup as the murderer of six persons, that he had been placed at the scene of the charged murder, that he had confessed to the six murders, and that he had offered to plead guilty in return for a ninety-nineyear sentence. Also, many prospective jurors had been influenced by the stories. At the beginning of the trial, 268 of the 430 potential jurors were excused because they admitted having fixed opinions that Irvin was guilty. Almost ninety percent of the prospective jurors, including eight who were selected, admitted having some opinion that he was guilty. In these circumstances, the Supreme Court concluded that the jury should be presumed to have been prejudiced. Three subsequent Warren Court decisions— Rideau v. Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966)—confirmed that prejudicial press coverage could be found without an admission of bias by jurors In Rideau, local stations broadcast a twenty-minute film of the defendant confessing to the charged offenses three times about two months before the trial, and three members of the jury stated that they had seen it. In Estes, the press was allowed to create a ‘‘circus atmosphere’’ during the trial, sitting within the bar of the courtroom and overrunning it with camera equipment. In Sheppard, both the sensational nature of the pretrial publicity and the unrestricted presence of the media in the courtroom had produced a strong impression of the defendant’s guilt. All three decisions applied the Irvin presumption of prejudice to cases based on the inflammatory nature of the press coverage, without statements by many prospective jurors that the media activity had biased them.
Supreme Court decisions after the era of Chief Justice Warren indicated, however, that the presumption of prejudice would not often be applied. The Court declined to apply the presumption in Murphy v. Florida, 421 U.S. 794 (1975), although extensive pretrial publicity had detailed the defendant’s prior convictions for grand theft and murder, and 25 percent of the seventy-eight prospective jurors examined had been dismissed because they held a strong opinion about his guilt.
The use of the presumption of prejudice was also limited by the Supreme Court’s decision in Patton v. Yount, 467 U.S. 1025 (1984). A high school teacher, Yount had been convicted in Pennsylvania state court after a second trial, held some four years after the crime, of the brutal murder of one of his female students. The crime had occurred in a rural county, and the publicity about it before the first trial had been intense and sustained. Even by the start of the second trial, only two of the 163 prospective jurors had not heard about the murder, and 126 of them stated that they would not be able to put aside their opinion that Yount was guilty. This was seventyseven percent of the pool, an even higher figure than the similar group in Irvin. Five of the twelve jurors who heard the second trial also stated that they had previously formed an opinion that Yount was guilty, and one stated that he would require evidence of innocence to overcome his view. Nonetheless, the Supreme Court concluded that the trial judge had not erred in proceeding to trial with the jury. This decision means that prejudice from publicity is rarely a basis for constitutional challenge unless a juror has confessed to a bias. A presumption of prejudice will generally arise only where the media coverage has been exceptionally inflammatory and enduring and, except where the press has also overrun the courtroom, has caused the vast majority of prospective jurors to reach fixed opinions that the defendant is guilty.
A 5 to 4 majority of the Supreme Court also held, in Mu’Min v. Virginia, 500 U.S. 415 (1991), that a trial judge need not examine prospective jurors intensively about publicity. The media coverage in the case had been extensive and damaging to Mu’Min. He was charged with a murder committed after he had escaped from a prison work program. The publicity revealed that his prison sentence was for a prior murder and that he had been denied parole six times. It also indicated that he had confessed to the new murder. Sixteen of the twenty-six prospective jurors, and eight who made it onto the jury, stated in response to a general question that they had heard about the case. However, the trial judge declined a defense request to examine jurors specifically about what they had heard, relying on prospective jurors’ general assurance that they had not formed opinions about guilt and could be impartial. While conceding that more specific inquiry could have helped in assessing whether jurors were impartial, the Supreme Court held that the inquiry was not constitutionally required.
Overcoming Prejudicial Publicity
Although trial judges are not often reversed in their rejection of constitutional claims of prejudicial publicity, they also often take steps to protect criminal defendants from publicity. Remedies protective of defendants can be grouped into two general categories. One group is designed to overcome publicity that has already appeared or that will be allowed to appear. The second group aims to prevent prejudicial publicity from appearing in the first place. This section covers the first category of remedies. The second category is covered subsequently.
Trial judges will often attempt to overcome potentially prejudicial publicity through the careful voir dire of prospective jurors and the use of forceful instructions provided to those who are selected to serve. During the voir dire process, the judge, or in some courts the lawyers, question prospective jurors about their views on matters that concern their general qualifications to serve and their impartiality regarding the particular case to be tried. Instructions are also given by the trial judge to jurors during the trial regarding their conduct while serving and regarding the information they are to consider in reaching a verdict. Although the Supreme Court’s decision in Mu’Min, discussed earlier, indicates that the voir dire need not be particularly searching, the Supreme Court also has emphasized that a careful and probing voir dire to expose and exclude biased jurors, along with forceful instructions on the need to ignore external information, can go far toward remedying potentially prejudicial publicity in many cases.
Trial judges also sometimes order a continuance of the trial to help overcome potentially prejudicial publicity. With the passage of time, many prospective jurors may forget damaging details included in the media coverage and may soften or efface their opinions about the defendant’s guilt. The Supreme Court acknowledged the importance of the passage of time between the publicity and the trial in Patton v. Yount, 467 U.S. 1025, 135 (1984), where it upheld the conviction over a claim of prejudicial publicity. At some point, this remedy involves a tension with the defendant’s Sixth Amendment right to a speedy trial as well as with the benefits to victims, witnesses, the prosecution, and, ultimately, the public, from prompt adjudication of criminal charges. This remedy also will not help greatly in highly notorious cases where the local media interest can be expected to endure for a long period. Examples include the prosecution of Charles Manson for the 1969 Tate-LaBianca murders in Los Angeles, or the murder prosecution of Pamela Smart in New Hampshire for the 1990 killing of her husband by two fifteen-year-old boys, one of whom she had been sexually exploiting. Nonetheless, it is commonplace for a trial judge to respond to a claim of prejudicial publicity by postponing the trial for several weeks, or even several months, particularly if the defendant requests this relief.
Sometimes a trial judge will grant a request for a change of trial venue, away from the location of the crime. Usually, the jurors will be selected from the area where the trial is occurring and will be less likely to have been influenced by local media coverage than persons from the original venue. If the jury is from the area of the new venue, this remedy can raise a conflict at times, particularly in federal court, with the defendant’s Sixth Amendment right to be tried by a jury ‘‘of the State and district wherein the crime shall have been committed.’’ However, the defendant can waive the right to a jury from the original state or district. Indeed, a change of venue, and a jury from the new venue, was imposed in the federal trials of Timothy McVeigh and Terry Nichols, for the 1995 bombing murders of scores of persons in the federal building in Oklahoma City. Although inconvenient to many, the federal judge took the extraordinary step of moving the trials from Oklahoma City to Denver.
To overcome prejudicial pretrial publicity, a judge may also use an imported pool of prospective jurors. A group of persons from a different, but still relatively nearby county, may be less influenced by publicity about a case. The trial judge used this approach in the 1979 trial in Chicago of John Wayne Gacy for the murder of more than thirty young men, whose bodies were found buried at his residence.
Where there is concern that publicity after the trial begins could influence jurors, the judge may also order sequestration of the jury. During sequestration, jurors are typically housed in a hotel and transported to the courthouse by court officials, so that their activities can be controlled and the possibilities for exposure to the media or other outside contacts greatly restricted. In the criminal trials of O. J. Simpson and Charles Manson, for example, the juries were sequestered. This remedy is not always popular, because it can be expensive and can impose a great personal burden on jurors.
Finally, a trial judge can sometimes order a new trial if it appears during or after trial that the jury was biased by publicity. In response to publicity that is deemed prejudicial to the defendant, a judge can stop a trial and order a new one at the defendant’s request or, if the trial is completed and the defendant is found guilty, vacate the verdict and order a new trial. In the rare situation in which publicity prejudices the prosecution, double jeopardy law permits the judge to stop a trial and order a new one based on ‘‘manifest necessity,’’ but does not allow a new trial once the defendant is acquitted. Although a new trial can sometimes be a backstop remedy for prejudicial press coverage, given the high costs of retrying a case, courts generally prefer to take precautions to ensure that the first jury sworn remains unbiased.
Preventing Prejudicial Publicity
Remedies designed to prevent potentially prejudicial press from occurring are also sometimes used to help ensure an impartial jury. However, the First Amendment imposes significant limitations on the trial judge’s use of these approaches.
A gag order on the press, prohibiting publication of information that the press has secured, is rarely acceptable under the First Amendment. In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), the Supreme Court struck down such a gag order imposed by a state judge in connection with a notorious murder case being tried in a small Nebraska town. The Supreme Court concluded that such orders were presumptively unconstitutional, but not that they were always impermissible. Indeed, in connection with the federal trial of former Panamanian dictator Manuel Noriega, the United States Court of Appeals, in United States v. Noriega, 917 F.2d 1543 (1990), upheld a narrowly tailored gag order imposed by the trial judge on the Cable News Network, and the Supreme Court declined review. The order concerned certain tapes of purportedly private conversations between Noriega and his lawyers that the network had obtained. Arguably, these were unusual circumstances in which a gag order on the press was allowed by Stuart. However, the Supreme Court’s denial of review does not necessarily indicate the Justices’ view on the issue. Many legal commentators have concluded that the Stuart decision imposes a barrier to the use of gag orders on the press that can rarely be surmounted.
Likewise, the imposition of civil or criminal penalties on the press for the publication of information regarding criminal cases is generally impermissible. Tort law, particularly for defamation, may sometimes provide a sanction for the knowing publication of untruthful information related to a criminal case. Supreme Court decisions suggest that the First Amendment would otherwise rarely allow civil or criminal sanctions for the publication of information about criminal cases. For example, in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), the Court held unconstitutional, as applied, a state statute criminalizing the publication of information about proceedings conducted by a state judicial tenure commission. The Justices concluded that internal procedures within the commission could largely address the purposes of the statute. Moreover, in Smith v. Daily Mail Publishing Company, 443 U.S. 97 (1979), the Supreme Court struck down a state statute making it a misdemeanor for a newspaper to publish the name of a juvenile offender without written permission from a court. The Justices declared that such a sanction requires ‘‘the highest form of state interest’’ to sustain its validity and implied that the availability of alternative remedies should be considered. In light of the array of less draconian measures commonly employed to protect against prejudicial publicity in criminal cases, this option appears generally unavailable.
Because of the obstacles to preventing the media from divulging information it secures, courts sometimes try to cut off the media’s sources by imposing gag orders on attorneys and other participants in the criminal case. In Sheppard v. Maxwell, (384 U.S. 333, 359 (1966)), the Supreme Court criticized the trial judge for failing to make efforts to ‘‘control the release of leads, information, and gossip to the press’’ and later asserted that the judge ‘‘might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.’’ The Supreme Court has also more recently held, in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), that an attorney may be sanctioned, after the fact, for speech about pending litigation to the extent that the statements create a ‘‘substantial likelihood’’ of material prejudice to the case. However, the Court has not ruled on when a trial court may impose a prior restraint on attorney speech, and there has been substantial disagreement on this issue. The Supreme Court also has not ruled on whether a trial judge can impose a gag order on the speech of various other non-attorney participants, such as witnesses, to the same extent as that of attorneys, and, despite the language in Sheppard, the answer is not clear. It is also uncertain what authority the judge may have to impose a gag order on government officials, such as police officers, who are not participants in the criminal proceedings.
Courts also can order closure of judicial proceedings in limited circumstances, though the First Amendment generally protects the press’s right of access to the courts. In Gannett Co. v. DePasquale, 443 U.S. 368 (1979), the Supreme
Court held that the ‘‘public trial’’ provision in the Sixth Amendment confers no right on strangers to be present when the defendant waives a public trial. However, the Court subsequently held in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), that the First Amendment does confer a right of public access to the trial. The Court has also held in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (‘‘PressEnterprise I’’), that there is a First Amendment right of access during the voir dire of the jury, which usually occurs immediately before the trial. In Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (‘‘Press-Enterprise II’’), the Court also held that the First Amendment right of access extends to the preliminary hearing, a proceeding that comes shortly after arrest and well before the trial. It appears that this same right of access applies at all pretrial hearings, with the exception of grand jury proceedings, which historically have been secret.
The First Amendment right of access is not absolute. In Globe Newspaper, the Court held that denial of press access at trial is possible if it is shown ‘‘that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.’’ However, given the alternative of jury sequestration, this standard for closure of trial appears quite difficult to meet. For closure of a pretrial proceeding, the Court, in Press-Enterprise II, stated that a defendant must show a ‘‘substantial probability’’ of prejudice from an open proceeding and that other ‘‘reasonable’’ alternatives to closure will not protect the right to an unbiased jury. Commentators have indicated that trial courts may have more room under the First Amendment to order closure of pretrial hearings than of the trial itself.
Finally, courts have substantial authority to impose limitations on media in the courtroom. In Sheppard v. Maxwell, the Supreme Court stated that trial courts may limit the number of reporters in attendance. Likewise, courts may restrict the use of cameras. After criticisms raised by overwhelming media coverage in the trial of Bruno Richard Hauptmann in 1935, the American Bar Association House of Delegates adopted Judicial Canon 35, which recommended against photographic or broadcast coverage of court proceedings. Only a small number of states allowed the photographic broadcasting of trials through the 1960s. Since the 1970s, however, there has been a trend among the states toward allowing television cameras in courtrooms, although the circumstances in which they are permitted vary. This trend was so marked, that by 1991, the Courtroom Television Network began nationwide broadcasts on a full-time basis of more sensational trials from state courts across the country. Indeed, by the end of the century, only a tiny number of states, along with the federal government, still banned television cameras altogether from trial courtrooms.
Strong arguments for and against television cameras in the courtroom have been made on both the policy level and on the level of constitutional law. The policy arguments for cameras cover many of the same grounds as those for basic press coverage of the courts. Education of the public about the judicial process is an overriding theme. The arguments against cameras build on the view that they make the proceedings more politicized and less judicial. These arguments have taken on more credence in the wake of criticism that arose over the televised broadcasts of the O. J. Simpson criminal trial.
At the level of constitutional law, states and the federal courts appear to have substantial flexibility in deciding whether to permit and how to regulate cameras in their courtrooms. In Estes v. Texas, the Supreme Court reversed a conviction as a matter of due process based on prejudice resulting from the chaos surrounding the televising of the proceedings. However, after advancement in camera and lighting technology, the Court later upheld Florida’s decision to allow cameras in the courtroom. In Chandler v. Florida, 449 U.S. 560 (1981), the Court ruled that, while the coverage should not compromise the defendant’s right to a fair jury, cameras in the courtroom were not generally proscribed. The Court in Chandler did not suggest that the First Amendment creates a presumption favoring camera access. The Court’s decision in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), rejecting a claim that the First Amendment required a court to relinquish subpoenaed tapes for copying, also raises doubt that the Court would reach such a conclusion. Commentators have argued that the press’s right of access to the courts, first recognized in Globe, in 1982, should create such a presumption. However, at the end of the century, it remained up to each jurisdiction to decide whether to ban cameras from the courtroom or, instead, to permit them under regulations that would protect the criminal defendant’s right to a fair proceeding.
The law regarding publicity in criminal cases is the outgrowth of efforts to protect competing rights, both of constitutional magnitude. Because freedom of the press holds a more cherished position in our constellation of values than in many countries, efforts to ensure that jurors in criminal cases are not biased by media coverage also require special and sometimes burdensome approaches. On the whole, however, trial courts in the United States have worked assiduously to accommodate both the First Amendment right to a free press and the Sixth Amendment and due process rights of criminal defendants to an impartial jury.
The most dramatic change in media coverage of criminal trials during the last quarter of the twentieth century has been increased televised coverage. Advances in camera technology have made the photographic broadcasting of court proceedings less physically intrusive than when the Supreme Court first addressed the issue in the 1960s. The development of cable television and the proliferation of networks devoted almost full time to news programming and, more specifically, to court matters, has also made the televising of courtroom proceedings common. In the long run, this trend will probably not be reversed. Although the Supreme Court may not find a presumptive First Amendment right for the press to bring television cameras into the courts, the Justices will also not likely ignore the benefits in the way of education of the citizenry about the judicial process that can result from televised coverage of criminal trials. Most jurisdictions will probably continue to confer substantial discretion on the trial judge regarding when to allow cameras. Given the accommodation to televising in many courts that has already occurred, it seems likely that the practice will continue to be common.
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