This document discusses the tension between free press and the right to a fair trial. It summarizes several Supreme Court cases that established limits on prejudicial pre-trial publicity and the responsibility of judges to shield defendants from biased media coverage, including Sheppard v. Maxwell. The document also reviews traditional judicial remedies for mitigating publicity's effects such as voir dire, change of venue, continuance, and sequestration. It discusses the aftermath of Nebraska Press Association v. Stuart and how courts have ruled that restrictive orders aimed at trial participants can infringe on press freedom.
Free Press, Fair Trial: When Constitutional Rights Come into ConflictDan Kennedy
To accompany lecture on Sheppard v. Maxwell, Nebraska Press Association v. Stuart, and related cases on the clash between First and Sixth Amendment rights.
A motion highlighting the falsity between the jury instruction in Florida that says that a judge decides a sentence, and the reality that a judge has no say in a sentence that is a minimum mandatory.
This is a comparative study on the concept of illegally obtained evidence between Malaysia, United Kingdom, United States of America and the concept from Islamic Perspective.
This presentation is for use when covering media law in an introductory mass media course. Includes laws impacting the media, new laws, legal changes, definitions of laws, controversy, 1st amendment laws.
Free Press, Fair Trial: When Constitutional Rights Come into ConflictDan Kennedy
To accompany lecture on Sheppard v. Maxwell, Nebraska Press Association v. Stuart, and related cases on the clash between First and Sixth Amendment rights.
A motion highlighting the falsity between the jury instruction in Florida that says that a judge decides a sentence, and the reality that a judge has no say in a sentence that is a minimum mandatory.
This is a comparative study on the concept of illegally obtained evidence between Malaysia, United Kingdom, United States of America and the concept from Islamic Perspective.
This presentation is for use when covering media law in an introductory mass media course. Includes laws impacting the media, new laws, legal changes, definitions of laws, controversy, 1st amendment laws.
CHAPTER 8 The TrialIntroductionFirst live, nat.docxtiffanyd4
CHAPTER 8
The Trial
IntroductionFirst live, nationally televised trial in the United States occurred in 1991William Kennedy SmithAllowed public to watch entire trial process from jury selection through verdict
Until then, public’s beliefs about trial process based on fictional TV trials
The Trial Process
Pretrial MotionsWritten or oral requests to the judge
Ask judge to make a ruling or order that action be taken in favor of the applicant
Made before opening statements or presentation of evidence
Types of MotionsDismissal of chargesNolle prosequi
Change of venue
Severance of defendants
Severance of charges
DiscoveryBill of particulars
Suppression of evidence
Intention to provide an alibi
Determination of competency
Continuance
The Right to a Speedy, Public, and Fair TrialSixth Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”
Key questions:How soon after arrest must a trial be held?How much access should the public have?How do we ensure that the jury is untainted by prejudice?
The Right to a Speedy Trial“Justice delayed is justice denied”
Seriousness of charge has the greatest influence on length of case processing
Defining the Limits of a Speedy TrialFederal/state governments have established rules limiting time between arrest and trial
Barker v. Wingo – continuances do not necessarily infringe defendant’s right to speedy trial
Speedy trial rules only affect time between arrest and start of trial
The Courts, the Public, and the PressSixth Amendment guarantees right to a public trialIntended to ensure that accused is treated fairly by government by giving public full access to information regarding proceedingsDoes not define what makes a trial “public”
Public trial means one that the public is free to attendLimits on number of people allowed/required determined by courtroom size
Public TrialsPublic’s right to attendGannett Co., Inc. v. DePasquale: public and press could be barred from pretrial hearingsCourt has ruled that press and public should not be excluded from jury selection stage
Freedom of press and pretrial publicityGag orders may be issued by judges in high-profile casesPrior restraint should be used only when absolutely necessaryClear threat to the fairness of trialThreat is posed by the publicity to be restrainedNo less restrictive alternatives are available
Cameras in the CourtroomFlorida first let TV cameras into courts in 1977
All 50 states have rules permitting cameras in courts under certain circumstances
Congress considering legislation that would permit cameras in all federal courts
Bench Trial Versus Jury TrialAbout 80% of defendants convicted at trial are convicted by juries, 20% convicted in bench trial
Reasons to waive jury trialCrime is so heinousUnusual appearance of defendantExcessive media coverageCase is too complexAttorney fees may be lower
Constitutional Right to a Trial JurySixth Amendment guaran.
Attorney Donald Harwood is a partner at Harwood Reiff LLC in New York City. Donald Harwood is a successful civil litigator, and he has also taken on complex criminal defense cases involving both appellate litigation and white collar defense.
The Federal Judiciary I. Constitutional Provisions .docxtodd771
The Federal Judiciary
I. Constitutional Provisions
A. Article III of the Constitution - “The judicial Power in the United States, shall be vested
in one supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish.” Also provides for lifetime tenure.
B. Marbury v. Madison (1803) - - gave the judicial branch the power to of judicial review -
decide on the constitutionality of legislative enactments and executive actions.
II. The Legal System
A. Criminal and Civil Law
1. Criminal Law - the branch of law dealing with crimes and their punishments.
(Murder, rape, robbery) state v citizen, innocent until proven guilty, burden of
proof on government, beyond a reasonable doubt
2. Civil Law - is the body of law dealing with noncriminal matters, such as the laws
of property, commercial law, and family law. (Employment discrimination)
citizen v citizen, threshold of proof is lower, PREPONDERANCE OF
EVIDENCE.
B. Jurisdiction - the authority to hear and decide cases.
1. Original Jurisdiction - refers to a court’s authority to hear disputes as a trial
court (Ex. O. J. Simpson’s case was held in a state level trial court). The facts of
the case are established at the trial court level. More than 90 percent of all cases
end at this stage.
2. Appellate Jurisdiction - refers to a court’s ability to review cases already decided
by a trial court.
III. The U.S. Court System: Organization and Jurisdiction
A. Federal District Courts - are trial courts. There are 94, based on population but with at
least one in each state.
1. They are courts of original jurisdiction.
2. Some use juries (either grand jury to decide if there is sufficient evidence to bring
an indictment to an accused person or petit jury that hear evidence and sit in
judgment) and other cases are heard by only a judge.
B. Circuit Court of Appeal - are intermediate appellate courts. There are 12, based on
regions or circuits that hear appeals from the federal district court. A thirteenth court, U.S.
Court of Appeals for the Federal Circuit, hears cases on patents and government contracts.
Usually, a group of three judges decides their cases.
C. Supreme Court - is the ultimate appellate court. Most cases that it hears have proceeded
through the lower courts first. Today, we have 8 justices and one chief justice - 9 in total.
1. Decisions of the U.S. Supreme Court are binding throughout the nation and
establish legal precedents.
2. Also has original jurisdiction - disputes involving ambassadors, two or more
states, etc.
IV. Judicial Selection - the president’s means of exercising leadership of the judicial branch
is through the nomination of federal judges.
A. Selection of Lower-Court Judges - this involves the federal district courts and the
court of appeals. The president nominates for a lifetime tenure and the Senate must
confirm each nomination by a majority vo.
3. Sheppard v. Maxwell
What happened?
Consequences
Supreme Court holds trial judges strictly responsible
for ensuring that a criminal defendant’s rights are not
compromised by prejudicial press publicity
5. Estes v. Texas
Court bashes trial judge who let reporters disrupt
decorum of courtroom with intrusive cameras and other
recording devices
6. Prejudicial Crime
Reporting
Past criminal behavior
Witness credibility
Defendants character
Inflame public mood
Test performances
Confessions
7. To what extent does
publicity prejudice an
individual’s right to a
fair trial?
8. Impact on jurors
http://www.youtube.com/watch?v=AOK71JfXnh0
What is an impartial juror?
U.S. v. Burr (1807)
Murphy v. Florida (1975)
Patton v. Yount (1984)
One who possesses knowledge of the case can serve on
the jury as long as…
9. Traditional Judicial Remedies
For Publicity
There are 5 Remedies.
• Voir Daire
• Change of Venue
• Continuance
• Admonition To Jury
• Sequestration To Jury
10. Voir Dire
Process by which jurors are examined to ascertain biases that
might thwart objectivity
Challenges for cause
Judge has discretion to uphold/deny challenge
Unlimited number available to each side
Peremptory challenges
Judge has no discretion to allow or disallow
(though Supreme Court has recently placed limits
on their use by attorneys seeking to exclude
prospective jurors on the basis of race or gender)
Limited number (usually specified in statutes or by
court rules) available to parties
11. Continuance
Delay of Trial
Theory that a postponement of the trial will allow for some of the hype to
die down.
In order for a continuance to take place, the defendant has to waive the
constitutional right to a speedy trial.
Disadvantages:
• Court system is already clogged, this could make the
trial go on for even longer
• The Criminal defendant could spend that added time in
jail.
• There is no guarantee that once the trial resumes no
harmful publicity wont spring back up.
12. Change of Venue
A trial in a state court can be moved to any other forum of
appropriate jurisdiction in that state.
A trial in federal court can be moved to any other federal court
elsewhere.
Usually a limited number of federal courts sites (often just one other)
located in state
More advisable to stay as close as possible to the original venue to
keep ensure the ease of getting witnesses, presenting evidence and
generally keeping expenses down.
Yet effectiveness of change improves heavily with distance.
Change of Venire men: Instead of relocating to
another court site, jurors are simply imported from
another locale.
13. Admonition To Jury
Judge may Admonish Jury to:
Render their decision based only on what they
hear as admissible evidence in court
Refrain from watching or reading reports
relating to the trial for which they are
impaneled
Evidence suggests that most jurors actually adhere to these
admonitions.
14. Sequestration of jury
Publicity during the trial can often be as threatening to a
defendant as pretrial publicity.
Pre Trial Publicity: The extra, often times negative attention
gained before a trial gets under way; that could create a biased
opinion for those involved in the trial (jurors, judge).
Arguments about admissibility of evidence is usually conducted
outside of jury’s hearing, but these may be reported/commented
on by the press
Other inflammatory info may get reported
Judges thus have prerogative of isolating members of the jury to
shield them from publicity about the case or to insulate them from
other potentially harmful influences.
15. Sequestration ofJury
CONT..
Disadvantages:
Costly
May lead to different types of prejudice- Jurors may blame
one side or the other from being kept/isolated from the
world.
16. Restrictive orders to control
publicity
on court cases
Sheppard v. Maxwell, 384 U.S. 333 (1966) was a United
States Supreme Court case that examined the rights
of freedom of the press as outlined in the 1st
Amendment when weighed against a defendant's right to
a fair trial as required by the 6th Amendment. In
particular, the court sought to determine whether or not
the defendant was denied fair trial for the second-degree
murder of his wife, of which he was convicted, because of
the trial judge's failure to protect Sheppard sufficiently
from the massive, pervasive, and prejudicial publicity that
attended his prosecution.
17. Sheppard v. Maxwell
After suffering a trial court conviction of second-degree
murder for the bludgeoning death of his pregnant
wife, Sam Sheppard challenged the verdict as the product
of an unfair trial. Sheppard, who maintained his innocence
of the crime, alleged that the trial judge failed to protect
him from the massive, widespread, and prejudicial
publicity that attended his prosecution. On appeal from an
Ohio district court ruling supporting his claim, the Sixth
Circuit Court of Appeals reversed the decision. When
Sheppard appealed again, the Supreme Court
granted certiorari (a review of the case by a higher court).
18. Nebraska Press Association
v. Stuart
(1976) Supreme Court of the United States decision in
which the Court held unconstitutional prior
restraints on media coverage during criminal trials.
As a responseto Nebraska Press, courts have resorted to drying
up sources of info for the press
Restrictive orders (gag orders)
Designed to stop parties, participants (even the press) from making
comments about specific aspects of case
19. Continued
In Nebraska Press Supreme Court did not declare anything
with regard to restrictive orders aimed only at participants
Continues to be assumed that courts have much broader
power to limit what police, attorneys, witnesses and other
participants can say about a case out of court
20. The aftermath of Nebraska
Press Association v. Stuart
In several cases, courts have ruled that the press may
legally challenge gag orders aimed only at attorneys
and other trial participants because they infringe
with the right to gather news (Connecticut Magazine
v. Moraghan)
When press is thus given the legal standing to
challenge a restrictive order on First Amendment
grounds, then trial judge must justify order pursuant
of Nebraska Press
21. Media On T.I Gun
Charges Case
IF YOU HAD TO BE A JUROR IN A CASE SIMILAR TO
THE STATE OF GEORGIA V. CLIFFORD HARRIS (T.I), DO
YOU THINK VIEWING THE VIDEO BELOW , BEFORE
TRIAL WILL AFFECT YOUR OPINION AND VOTE ON
THE FREEDOM OF THE DEFENDANT.
http://www.youtube.com/watch?v=Jb1CAundf_0
674,423 YOUTUBE VIEWS
23. The American press proudly boasts news coverage of crime,
criminals, and trials as its “top stories”
Consequentially, tension between the press and the judicial system
has gotten worse.
Top 3 Reasons Why:
Mass media has expanded in recent years. Mass media promotes the
broadcast of crime news as “live, local, and late-breaking.” Crime news is
discussed on the radio, in newspapers, on social media sites, and has even
made its way into prime-time television (ie: First 48, Law and Order)
War on Terror: the government’s response to recent terrorist acts and
matters of national security has been heightened by the media’s influence.
Public’s Infatuation with Hollywood: Let’s face it: we all have invested
heavy interest in the lives of celebrities, sports figures, and socialites.
Publicity of high profile cases is in high demand
24. Here’s the issue:
Judges are extremely limited when it
comes to blocking the press from
printing or broadcasting judicial
proceedings and documents
Now government officials have begun
to limit public and press access to trials,
judicial proceedings, and documents….
25. 1980: US Supreme Court says it is a right under
common law and the First Amendment in the US
constitution for the public and the press to attend
a criminal trial.
1986: “right of access” extended to access of judicial
proceedings and records.
PublickerIndustiriesv. Cohen- 1984
Civil proceedings are also presumptively open to
the public.
Right is not absolute, but government must prove
that access is beneficial.
Trial must serve in important government interest,
closing the trial is the ONLY way to serve that interest
26. Press Enterprise vs.
Riverside Superior Court
Press-Enterprise Company won two separate Supreme Court cases that
established the public’s right to witness specific aspects of criminal
court proceedings
First case, won in 1984
Press-Enterprise Co vs. Superior Court of California
Second case, won in 1986
Press-Enterprise Co. vs. Superior Court of Riverside County,
California
Does a qualified First Amendment right of public access
attach to a preliminary hearing, and under what conditions
may the hearing be closed to the public while ensuring a fair
balancing of First Amendment and Sixth Amendment
guarantees?
27. Press Enterprise v. Riverside
Superior Court (1986) Test
Five-prong elements of test
Party seeking closure must advance an overriding
interest (e.g. right to a fair trial or protection of a
witness) that is likely to be harmed if proceeding is open
Party seeking closure must demonstrate “substantial
probability” this interest will be harmed by openness
Trial court must consider reasonable alternatives to
closure (voir dire, limited closure during specific
testimony)
If judge decides on closure it must be narrowly tailored
to restrict no more access than is absolutely necessary
Trial court must make adequate findings to support
closure decision (provides basis for appellate review)