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The relationship between the criminal justice system and the media system has been the subject of research, speculation, and commentary throughout the twentieth century. This relationship may be understood in terms of dependency relations operative between these massive systems (Ball-Rokeach and De Fleur). Put most simply, neither the media nor the criminal justice system could operate effectively without the other. The criminal justice system is a resource for the media system in that it affords one of the common sources of news and entertainment stories. The classical surrogate scout role of the media, whereby they monitor the environment for actual and potential threats to individual and collective welfare, affords a powerful way for the media to attract their audiences. People must constantly update their understanding and ability to orient themselves to the environments in which they act. Media crime stories, whether the news or entertainment genre, instruct and update these understandings. Commercial media organizations translate this relationship with their audience into the profit that flows from advertisers. The media system’s capacities to reach vast audiences of citizens and policymakers also positions it as an essential resource for the criminal justice system and all of its attendant judicial and law enforcement organizations. For the criminal justice system to operate effectively, it must have the authority that derives from people’s willingness to grant it legitimacy, and media storytelling can profoundly affect this process. Allocation of scarce resources to the criminal justice system also depends upon success in the struggle to get ‘‘its’’ story positively framed and widely disseminated to media audiences. These macro dependency relations serve as context for examinations of specific aspects of media, criminal justice, public, and decision-maker relations.
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Research attention has been given to the dependency relations between journalists and the police, courts, and jails. The impact of journalism on public perceptions of the criminal justice system, and on public attitudes toward specific cases—including the attitudes of potential and actual jurors—has been another frequent focus. The right of journalists to protect sources by not disclosing their names has also come under scrutiny from time to time.
While journalism may be the media profession with the most legitimate claim to exercise influence over the criminal justice system, it is by no means the only way the media exercise such influence. Entertainment media have also been studied and criticized for their influence over public perceptions of the people and institutions that comprise the criminal justice system. A striking amount of television programming has in one way or another (e.g., through comedy, mystery, drama, biography, docudrama, and soap opera) been centered on police, lawyers, judges, criminals, and victims of crime. The effects on public attitudes and behavior that these portrayals may have brought about have received considerable research attention. Media portrayals of violence, largely in television but also in movies and—increasingly in the 1990s—recorded music, have been studied in part for their potential to inspire real-life criminal behavior. Exposure to violent media content has been argued in criminal defenses as a mitigating factor in the guilt of defendants.
Since the early 1980s a television genre has emerged that is part journalism (in that it purports to deal with reality and with important subjects) and in no small part entertainment (in that it is dramatic, enhanced with music and special effects, and often includes actors playing various roles). Shows such as Cops, America’s Most Wanted, and Unsolved Mysteries combine footage of actual arrests, interviews with people involved in crimes, and other documentary information with an assortment of dramatic elements to create a new sort of quasi-journalism scorned by professional journalists but very popular. While not yet the focus of much research attention, the emergence of such shows is occasionally credited for a perceived decline in the quality of broadcast journalism, which may have an indirect effect on the justice system.
Only in the twentieth century did journalism attain the status of a profession, with professional schools, organizations, honors, norms, and the means of disciplining transgressors. Early conceptions of the journalist as an objective conduit of facts about the world have given way to more complex models of journalism in which the role of institutional imperatives and individual biases are recognized as highly influential, if not decisive, factors shaping the content of news (Bennett; McManus; Winch).
Various elements of the criminal justice system are among those most likely to influence journalism. Public interest in crime news is generally high, so there is a commercial incentive for newspapers and broadcasters to provide such information. Crimes are usually good stories; they can be told as morality plays, dramatic confrontations, and human-interest stories even when their value as hard news is not high. Demand for crime news produces close relationships between police, judicial officers, and reporters. The information resources controlled by police, such as the identity of suspects, the status of cases, and the evidence assembled, are highly prized by reporters. Attorneys and (less frequently) judges may offer valuable information about ongoing (and even long-past) trials. Reporters do their best to cultivate close and reliable relations with the police, the courts, and the prosecuting attorneys on their beats. If a reporter is not on good terms with these people, he or she risks losing information necessary to tell a coherent or interesting story. A reporter may not be alerted to new discoveries of evidence, new legal strategies, or impending changes in the dates and times of public hearings. Often there is no source of this information other than the police, courts, and prosecutors.
Reporters control resources of their own, prized by the criminal justice system. The threat of adverse publicity can be potent, especially for elected officers of the court and (in some jurisdictions) police chiefs or sheriffs. Truly virulent public attacks on the police or the judiciary are rare, however, since the relationship between journalists and these institutions is ongoing and valuable; no newspaper or broadcast outlet can afford to burn such bridges. Apart from publicity, journalists can enhance the overall legitimacy of the justice system by covering its activities. Public confidence that the police are behaving appropriately or that the judicial system ‘‘works’’ can be maintained simply through routine coverage of crime. Stories that challenge that confidence may be presented as aberrations from an otherwise upbeat routine.
Pritchard and Hughes demonstrate the practical result of these dependency relations. They studied the newspaper coverage of a year’s worth of homicides in Milwaukee, Wisconsin, with attention to the factors that determine whether a murder will merit coverage or not. They found that ‘‘reporters tended to take cues for evaluations of newsworthiness from race, gender, and age’’ (p. 52), information about both victims and suspects usually available from official sources. Deadline pressure seems to encourage reporters and editors to use such attributes to calculate the extent and nature of ‘‘deviance’’ the murder involves. While conventional wisdom describes newsworthiness in terms of ‘‘statistical deviance’’ (i.e., departure from the usual, as in ‘‘man bites dog’’), Pritchard and Hughes show that ‘‘status deviance’’ (i.e., the death or suspectstatus of high status citizens) and cultural deviance (i.e., murder of the ‘‘especially vulnerable,’’ such as women, children, and the aged) explains the decision to cover or ignore a homicide (p. 52).
Pritchard had earlier (1986) demonstrated that coverage of homicides in Milwaukee was a strong predictor of whether or not the prosecuting attorney would plea-bargain the case. Murders that received more coverage in the newspapers were less likely to be bargained than low-publicity crimes. Pritchard notes that this finding is consistent with earlier research (Alschuler; Jones) regarding the decision-making of prosecutors that indicated that political considerations (e.g., fear of being seen as ‘‘soft on crime’’) exercised strong influence on prosecutors’ decisions. Further, Pritchard, Dilts, and Berkowitz demonstrated that prosecution of pornography offenses in Indiana in the mid-1980s was influenced by the relative priority of pornography on the agendas of citizens and of the local newspapers.
The cumulative impact of Pritchard and others’ work is to illustrate that reporters and editors are most likely to report crimes based on certain attributes of the victims and suspects, and that prosecutors monitor press coverage and choose which crimes to prosecute aggressively based in part on the level of press attention the crime has received. Since the criteria of reporters tend toward coverage of white victims and victims who are either female, very young, or very old (or some combination of those attributes), the least likely crime to be covered is one in which the victim is a black adult male. Thus the least likely crime to be aggressively prosecuted is one committed against a black adult male.
Defendants and defense attorneys are less likely to benefit from these relations of dependency. A guilty criminal defendant has no interest in sharing details of a crime, of course, and innocent defendants have no details to offer. Even if defendants do have valuable information, they are unlikely to have valuable information on a regular basis for years to come, the way police and judicial officers do. Defense attorneys are a bit more likely to be valuable sources in the future, but not nearly as likely as prosecutors. There is much more crime in the world than there is coverage of it, so most defense attorneys most times will not be defending newsworthy clients. But all newsworthy prosecutions are performed by a handful of offices, from city attorneys to federal prosecutors. Given a choice between developing close, mutually rewarding relationships with defendants or prosecutors, a working reporter knows where his or her professional future is most safely insured. Robert Shapiro, a prominent defense attorney (and member of O.J. Simpson’s ‘‘Dream Team’’) noted that ‘‘[t]he defense lawyer who has never dealt with the press, or has no pre-existing relationship with a particular reporter, is at a severe disadvantage. In order to overcome this, the lawyer must cultivate a line of communication with the reporter so the client’s point of view can be expressed in the most favorable way’’ (p. 27).
One effect of crime coverage on the judicial process that has received considerable research attention is the influence of pretrial publicity on jurors. Partly due to the pattern of dependency relations described above, it has been noted that most coverage of crime is detrimental to the defendant, including the publication of information inadmissible at trial (Imrich, Mullin, and Linz; Dixon and Linz). Does this bad publicity produce predispositions in jurors one way or the other? A variety of experimental and quasiexperimental research studies have demonstrated consistent support for the hypothesis that at least mild antidefendant bias can be the result of exposure to pretrial publicity (Constantini and King; Dexter, Cutler, and Moran; Greene and Wade; Kramer, Kerr, and Carroll; Kerr, Kramer, Carroll, and Alfini; Moran and Cutler; Ogloff and Vidmar; Otto, Penrod, and Dexter). Judicial remedies such as voir dire, judges’ instructions, and continuances are not guaranteed to overcome these effects (Kramer et al.; Carroll et al.; Vidmar and Melnitzer; Dexter et al.; Kerr et al.). Bruschke and Loges, however, found that the conviction rate for federal murder defendants whose cases received no discernible print coverage did not differ significantly from the conviction rate of defendants whose cases received high amounts of print coverage. In fact, Bruschke and Loges found that the highest conviction rate was observed among those who had between one and five stories written about their case. Once convicted, however, defendants with the most publicity received substantially longer prison sentences than those with little or no publicity.
The effect of pretrial (and during-trial) publicity on public opinion and jury bias can lead to policies such as gag rules (prohibiting trial participants from publicly discussing the case), restriction of court access to the press—particularly TV cameras—and changes of venue. Salwen and Driscoll point out that support for media regulation may spring from a ‘‘third-person effect’’ in which a person believes that others are prone to media influence while he or she is much less prone to the same effect. Studying public opinion regarding conflicting evidence and arguments during the murder trial of O.J. Simpson, Salwen and Driscoll found that there is a significant tendency for survey respondents to estimate higher media influence for others than for themselves, but that this belief is not strongly associated with calls for regulation of the press, particularly among well-educated respondents. While education in general may reduce one’s willingness to endorse media regulation, it is not clear whether judges subject to the third-person effect might be more willing to impose restrictions given their unique role in the judicial process, despite their high levels of education. McLeod, Eveland, and Nathanson (1997) found that support for censorship of rap lyrics thought to incite misogyny and violence was associated with a third-person effect, although their collegestudent sample made it impossible to control for education.
Another approach to the study of news content and its effect on public opinion is framing. ‘‘Framing essentially involves selection and salience. To frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described’’ (Entman, 1993, p. 52, emphases in original). Research into the methods journalists use to reconstruct reality into ‘‘the news’’ has focused on the use of framing devices to turn events into coherent stories (Kahneman and Tversky; Graber; Sniderman, Brody, and Tetlock). Entman (1994) has argued that by showing visual images of black suspects and defendants in the grasp of white police officers, television news frames blacks as both more dangerous and under more direct physical control than whites (who are less likely to be shown in the physical grasp of an officer—especially a nonwhite officer). Dixon (1998) finds that black suspects are disproportionately shown on the news (compared to their proportion of arrested suspects in crime reports). The concept of framing suggests that such patterns of representation increase the salience of connections between blacks and crime in general, and thus perpetuate stereotypes of both black criminality and white authority.
The possibility that exposure to mass media entertainment—from comic books to the Internet—can inspire criminal behavior was the subject of research, speculation, and debate throughout the twentieth century. Some content is considered more suspect than others, particularly depictions of violence. Since 1950, violent television fare has been the subject of a great deal of research, and meta-analyses of this body of research tend to conclude that there is a consistent, moderate causal relationship between exposure to televised violence and aggressive behavior in the real world (Hearold; Paik and Comstock; Hogben). Various theoretical explanations for the link have been offered, notably including social learning (Bandura), excitation transfer (Zillmann, Hoyt, and Day), and disinhibition, or desensitization (Berkowitz and Rawlings; Thomas, Horton, Lippincott, and Drabman).
Not all aggressive behavior is criminal, of course. The laboratory studies that lead to the conclusion that exposure to televised violence causes more aggressive behavior in real life are frequently criticized for not being sufficiently realistic to be generalized to the potential for truly dangerous, criminal behavior outside the laboratory. This criticism is deflected somewhat by research using other methods, including large sample surveys, quasi-experiments (using a more realistic setting with naive subjects unaware that they are under observation) and ‘‘found experiments’’ (in which public records are searched for evidence of pre- and post-exposure effects) (Phillips), all of which tend to support the conclusion that a persistent but moderate effect on aggressive behavior can be traced to exposure to violent media.
Three particular subjects receive the bulk of research attention where entertainment-related effects are concerned: (1) the effects of any violent media on children; (2) the ‘‘cultivation’’ of beliefs about crime and the criminal justice system that results from viewing television; and (3) the effects of pornography on adults. It is frequently noted that by the time an American child reaches adolescence he or she is likely to have seen thousands of murders depicted on television (e.g., Huston et al’s, calculation that by the time a child leaves elementary school he or she will have seen eight thousand murders) (cited in Bogart, p. 351). In the 1990s the increasing popularity of computer games that simulate wholesale slaughter of human beings (e.g., Doom and Quake) has led to speculation that the wave of school shootings of the late 1990s has roots in part in the skills (such as arming, evaluating killed or wounded status, and strategizing) cultivated by playing such games and in the indifference toward suffering that leads to success in the games (Grossman).
Cultivation theory hypothesizes that television’s depiction of the world leads heavy viewers of television to believe that the real world resembles the television world in key respects, including the likelihood of crime and the proportion of people involved in the criminal justice system (Gerbner, Gross, Morgan, and Signorielli). Carlson (1985) studied the content of crime shows in the late 1970s and the attitudes toward the criminal justice system held by viewers of these shows. He found that the crime shows on television in the late 1970s presented a very unrealistic view of the criminal justice system, specifically including the effectiveness of police, the rights of suspects and defendants, and the general level of criminal activity in the world. People who watch these shows report more support for authorities such as police, less support for civil liberties, and more political cynicism. Carlson notes that the consistent messages of crime shows may result in ‘‘an increase in demand for police protection’’ (p. 195) since police are portrayed as extraordinarily effective and crime as rampant. It should be noted, however, that the sort of crime shows Carlson examined were qualitatively different from the shows that emerged in the 1980s, beginning with Hill Street Blues. These later shows, many produced by Stephen Bochco, have featured flawed police who often fail to catch their suspects, and open criminals as recurring characters who appear immune to capture. The effects of such programs would, by Carlson’s logic, result in mistrust of police and perhaps even more generalized cynicism.
Shrum and Mares each have attempted to explain the psychological processes by which cultivation occurs. Shrum points to the accessibility of heuristics, whereby it is easier for heavy viewers of television to rely on the impression TV makes on them when they answer questions about the real world than it would be for heavy viewers to search their minds and make a more elaborate—and perhaps accurate—calculation. Mares argues that respondents are not always aware of where their information comes from, and thus ‘‘source confusion’’ accounts for people’s tendency to describe the real world in television terms. Potter, Warren, and others point out that even if viewers limit their exposure to nonfiction programs, such as news and news magazines (e.g., 20/20), they are likely to end up with distorted impressions of the real world. The authors compare nonfiction TV depictions of antisocial behavior to real-world statistics. ‘‘If we rely on non-fiction programming to tell us about the parameters and nature of our society, that programming is constructing narratives that are not particularly useful for that purpose. Nonfictional television presents a very high rate of antisocial activity, and the most serious forms of that activity (physical violence and crime) are presented at rates far above the rates in the real world’’ (p. 86).
While fears regarding children’s exposure to violent media are mostly centered on the likelihood that children will imitate or learn the criminal behavior they see, concerns about adults’ exposure to pornography also include the impact of such exposure on such decisions as jury verdicts in rape trials (Linz, Donnerstein, and Penrod) and acceptance of ‘‘rape myths,’’ for example, that women only pretend to resist rape (Allen, Emmers, Gebhardt, and Giery). Adults play many roles in the criminal justice system that make their attitudes toward crime important. If, as Linz and others demonstrate, exposure to pornography can affect jurors’ decisions, voir dire in rape cases might benefit from questions about such exposure (if potential jurors could be counted on to respond to voir dire inquiries on this subject truthfully).
It is not always easy to define the ideal relationship between the media system and the criminal justice system. The goals and resources of the media do not mesh perfectly with those of prosecutors, defendants, judges, and police. The goals and resources that people possess as audiences and readers are different from the goals and resources those same people possess in other roles they play, as citizens, jurors, suspects, and consumers. The ongoing negotiation between the media, the justice system, and people in their various relevant roles produces the media effects observed in the research fields reviewed here (Ball-Rokeach). Many of these effects may be unintended or undesirable, but mitigating such effects as prejudicial pretrial publicity is often not possible without threatening goals that others consider paramount, such as press freedom or the desire of a prosecutor to try a case locally (i.e., avoiding a change of venue).
When goals are in conflict, and resources are scarce or fought over, the relative power of the parties to the conflict becomes the central issue. There is doubt that the ability of the media to influence the course of criminal justice is entirely legitimate or desirable, especially when that influence stems from the increasing dominance of the media’s entertainment over its journalistic function. But the media are powerful enough to resist intrusive public policy and defend their resources (such as access to sources, control over their broadcast schedules, and use of information-gathering tactics such as hidden cameras). The justice system has powerful resources of its own to use to pursue its goals when they conflict with the media’s. It is the public, particularly when the public is atomized, whose goals are least likely to receive support and benefit from rich resources when they are threatened by the goals of the media or the justice system. As Potter and Warren point out in their discussion of policies regarding the regulation of sex and violence on television, the political influence of the broadcasting industry allows the media to tie up regulators over definitional issues (What is sex? What is violence?), rendering public policy to limit such content ineffective.
We began and ended the twentieth century with a nervous tension of conflict and cooperation between the media and criminal justice systems. In nontotalitarian societies this tension is unavoidable as the goals and interests of these systems differ. A question for the twenty-first century is whether the delicate balance of power between these players will give way. A major concern is the trendline of increasing distrust of major social institutions, especially when combined with an apparent decline in the strength of commitment to civic society (Putnam, 1995). In other words, the relationship between the media and criminal justice systems is a dynamic one that reflects changes in the larger social and political environment where conceptions of justice and community are formed. For the criminal justice system to have legitimacy for its just administration of the criminal law and for the media system to have legitimacy for its contributions to civil society, each must be regarded as playing vital roles in furtherance of a democratic order that commands the allegiance of its citizens. In short, justice must remain part of the crime story, whether told by the criminal justice system or by the media.
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