Is Pretrial Publicity Undermining Due Process?

Pretrial publicity (PTP) may have a substantially greater effect on a jury’s ability to determine facts based upon the presentation of evidence than once believed. As a result, the exposure of PTP to potential jurors may be violating the Sixth Amendment rights of Due Process. Research suggests that PTP exposure creates a so-called “anchor effect” in the minds of jurors. Essentially, the anchor effect causes all subsequently presented evidence to be viewed by jurors through the lens of media bias. Moreover, PTP further biases juries due to the fact that friends and neighbors hear the information and may have discussed the issue with the potential juror prior to jury selection.

Contrary to the position of the Reporter’s Committee Association, a recent study found that mock juries exposed to pro-prosecution PTP 14 months prior to trial had similar verdict bias to juries who were exposed to pro-prosecution bias only two weeks prior to trial. This supports the fear that PTP is not cured by the purported cooling effect of the passage of time. As a result, the findings have significant implications regarding a defendant’s right to a trial by an impartial jury. I believe the only meaningful solution to the problem of PTP biasing juries begins with journalists holding themselves to higher standards. Specifically, it may be time to rethink how trials should receive coverage and what information is ethically permissible to release to the public. Indeed, lawyers must adhere to ABA Rule 3.6 but this does not prevent journalists from unilaterally disseminating harmful and sensational information. Moreover, gag orders may prevent officers of the court from revealing trial information to reporters, but does not prevent the media from biasing the public with speculative character assassination. As a result, gag orders do little to prevent PTP which takes place before the trial phase.

The right to a trial by an unbiased jury is fundamental to the American legal system. Unfortunately, the judicial system is not capable of preserving this right by itself. Negative coverage of defendants in media creates long-lasting bias within potential jurors.  In the interest of protecting defendants’ Sixth Amendment rights it is time for journalists to reevaluate the ethics of pretrial coverage. Journalists may argue that sensationalizing trial coverage is protected under the First Amendment. However, exercising one’s right of free speech should not come at the obliteration of the right to a fair trial. If journalists are unwilling to honorably self-regulate, then perhaps courts should start using contempt orders to punish those who influence the jury with PTP. Regardless of the solution, something meaningful must be done to protect the Sixth Amendment from PTP bias.