Ian Cram, School of Law    Leeds University I.G.Cram@leeds.ac.uk
   US First Amendment – Congress shall make    no law ... abridging ... freedom of speech or    of the press...   What d...
   [T]he First Amendment ...has a structural    role to play in securing and fostering our    republican system of self-g...
   Restrictions on speech about court    proceedings is constitutional only if   (i) ‘clear and present’ danger test is ...
   ABA Standard 8-3.1   Absent a clear and present danger to the    fairness of a trial or other compelling    interest,...
   Question: Do reporters get in trouble if news    stories cause the court to change the place of    the trial or delay ...
State of California v   AGv MGN [2011] EWHC 2074Simpson (1995)
   Emphasis on curative measures to safeguard    Sixth Amendment fair trial rights (rather than    preventative sanctions...
   Flowing into jury room          Flowing out of the jury   Eg private juror internet        room    research done awa...
   Why is juror’s private research troublesome?   Introduces untested and possibly prejudicial    material into delibera...
   Undermines finality of jury verdicts   Inhibits juror to juror exchanges (and    therefore quality of jury deliberati...
   University lecturer & juror    Theadora Dallas   Jailed January 2012   Breached trial judge’s    direction not to se...
   Joanna Fraill –June 2011   Discussed case on    Facebook with a    defendant previously    acquitted whilst jury    d...
   March 2009 – collapse of a federal drugs trial in    Florida after 9 out of 12 jurors admitted private    online resea...
 Ban Iphones, Blackberries etc. from courtroom –  doesn’t stop out of court  communications/information flow Make explic...
   Egs. ‘do not use the internet to research the case’ ‘do    not talk about the trial to others’    Lack of specific pr...
   Curious to gain background information on key    participants in trials   Belief that justice will be better served i...
   EDUCATING JURORS about   why the use of electronic devices is prohibited   which electronic devices are prohibited ...
   Moving away from wholly adversarial trials to    allow jurors a more active role within    proceedings than they curre...
Professor Ian Cram - Justice Wide Open
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Professor Ian Cram - Justice Wide Open

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Professor Ian Cram - Justice Wide Open

  1. 1. Ian Cram, School of Law Leeds University I.G.Cram@leeds.ac.uk
  2. 2.  US First Amendment – Congress shall make no law ... abridging ... freedom of speech or of the press... What does this mean in the context of reporting court proceedings? Ideal of republican self-government Distrust of government regulation of speech on contents grounds
  3. 3.  [T]he First Amendment ...has a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is ... (the) assumption that valuable public debate - as well as other civic behavior - must be informed. Brennan J in Richmond Newspapers v Virginia 448 US 555, 587 (1980)
  4. 4.  Restrictions on speech about court proceedings is constitutional only if (i) ‘clear and present’ danger test is satisfied; AND (ii) the restriction advances the governmental interest (eg administration of justice) by minimally impairing the exercise of First Amendment freedoms Effectively rules out sub judice contempt & makes prior restraints (gag orders) hard to obtain
  5. 5.  ABA Standard 8-3.1 Absent a clear and present danger to the fairness of a trial or other compelling interest, no rule of court or judicial order should be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case
  6. 6.  Question: Do reporters get in trouble if news stories cause the court to change the place of the trial or delay the trial because of adverse pretrial publicity? Answer: No legal penalty or obligation may be imposed on reporters to avoid publicity about a case. No legal penalty may be imposed for even the most intense, exaggerated, biased or “hyped” coverage of any criminal case (except the remedies provided by successful libel suits)
  7. 7. State of California v AGv MGN [2011] EWHC 2074Simpson (1995)
  8. 8.  Emphasis on curative measures to safeguard Sixth Amendment fair trial rights (rather than preventative sanctions imposed on media for threatening trial fairness) including: 1) Voir dire 2) Venue change/ delay in start of trial 3) Jury sequestering –extreme cases (OJ Simpson)
  9. 9.  Flowing into jury room  Flowing out of the jury Eg private juror internet room research done away from  Tweet updates on jury courtroom later disclosed room experiences – to fellow jurors (eg Juror including deliberations No 8’s knife)  Facebook – see Fraill Facebook, Twitter case  Blogging
  10. 10.  Why is juror’s private research troublesome? Introduces untested and possibly prejudicial material into deliberations Thus undermining rules of evidence & system of adversarial justice – no opportunity for prosecution/defence to challenge the products of private research Costly where retrial is ordered & additional trauma for victims & witnesses
  11. 11.  Undermines finality of jury verdicts Inhibits juror to juror exchanges (and therefore quality of jury deliberations)
  12. 12.  University lecturer & juror Theadora Dallas Jailed January 2012 Breached trial judge’s direction not to search internet for trial related materials Told fellow jurors what she had found about defendant (including previous rape allegation)– causing trail to be halted
  13. 13.  Joanna Fraill –June 2011 Discussed case on Facebook with a defendant previously acquitted whilst jury deliberating remaining charges against co- defendant Revealed details of jury deliberations Also admitted Google search on co-defendant Jailed 8 months
  14. 14.  March 2009 – collapse of a federal drugs trial in Florida after 9 out of 12 jurors admitted private online research US v Fumo July 2009 political corruption trial against a former state senator – juror tweeted during trial and made posts to his Facebook page – defence motion for a mistrial rejected Juror had not read any replies to his tweets – no flow of information into deliberative process therefore no prejudice caused to defence ‘As Jurors turn to Web, Mistrials are Popping Up’ J. Schwarz New York Times (2009) March 18
  15. 15.  Ban Iphones, Blackberries etc. from courtroom – doesn’t stop out of court communications/information flow Make explicit reasons for limits on jurors’ use of above – and exactly what technology is covered by ban Eg “Google Earth may not be used to check location details in the present case” “Twitter updates on progress of trial to followers are strictly prohibited” See Michigan rules (in force Sept 1 2009) Possible problem – a technology-specific rule is likely to be under-inclusive as technology progresses – so any rules will need regular updating
  16. 16.  Egs. ‘do not use the internet to research the case’ ‘do not talk about the trial to others’ Lack of specific prohibition may cause (i)confusion about what precisely is covered; OR (ii) encourage ‘lawyer-like’ loophole finding One US juror blogged thus: ‘Hey guys! I know that jurors aren’t supposed to talk about their trial, but nobody said that they couldn’t live blog it, right? Am I right or am I right?!?!’
  17. 17.  Curious to gain background information on key participants in trials Belief that justice will be better served if more not less ‘information’ is before the jury Cultural reasons- young (and not so young!) jurors are accustomed to finding information online and have the technological means (Iphones, Blackberry etc.) and expertise to reach online material More generally perhaps a dependence on instant communication to friends/access to information Twitter is akin to gossiping in your friend’s ear – how could that pose a threat to trial process?
  18. 18.  EDUCATING JURORS about why the use of electronic devices is prohibited which electronic devices are prohibited when does the prohibition cease Consequences of breaching prohibition – remind jurors of Fraill and Dallas cases and resulting custodial sentences Encourage (reward?) fellow jurors to inform on jurors who breach prohibition upon learning of the breach Require jurors to make a declaration of non-use at the start & conclusion of trial
  19. 19.  Moving away from wholly adversarial trials to allow jurors a more active role within proceedings than they currently enjoy. This would perhaps offer a means of satisfying the curious (and conscientious) juror who has his/her own questions about the events at issue in the trial and remove a principal reason for online activity Some US states (eg. New York and Pennslyvania) have experimented allowing jurors to submit written questions – positive feedback from trial judges (Kaye 2006, Turgeon & Francis 2009).

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