I think this is the proper forum; if not, I’d appreciate a mod’s moving it as needed.
Last weekend, some friends and I were watching TV and the topic of conversation came up about how the media, especially TV news, tends to plaster someone’s name, face and life history up as soon as they are arrested for a crime. This led to the question being asked as to whether someone can truly get a fair trial as a result. I’ve thought about it for a while, and would like to bounce some ideas/questions off my fellow Dopers.
The First Amendment gives us freedom of the press:
However, the Sixth Amendment gives us the right to trial by impartial jury:
(bolding mine)
Now, the Founding Fathers never envisioned television or the like. At that day and time, it would be fairly easy to have someone be arrested and tried and the jurors probably wouldn’t even know the crime had been committed in some instances; news just didn’t travel that fast. However, today is a different story.
Question: what would the result be if the media were prohibited from publishing anything that identified a criminal defendant until after the jury returned its verdict? They could report that an arrest had been made, but little else. Is this a violation of 1st Amendment rights or an enforcement of 6th Amendment rights?
I personally think that is a reasonable compromise. The press is not enjoined from reporting about the crime and the arrest and then later, the conviction, but they are enjoined from endangering the individual’s right to an impartial jury.
I’m missing the part where there is a conflict between the amendments. I don’t see anything in the Sixth Amendment that would indicate that a defendant has a right to anonymity. To the contrary, the Sixth Amendment guarantees a public trial, which seems to me to be the antithesis of anonymity of the accused.
Yeah, which discussion are you most interes?ed in pursuing? Do you want us to accept for the sake of argument the premise that your example does indeed illustrate a conflict between the two amendments, and discuss how such a conflict would or should be handled (as a twice-removed hypothetical in the case of people who don’t see the confict there)? Or do you want to focus on your example and whether or not in that circumstance such a conflict does indeed potentially manifest itself?
More importantly, what say the Supreme Court: “The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness.”
The freedom of the press and the rights of the accused are not necessarily at odds, but sometimes they are. For example in Press Enterprise v. Superior Court of California, the defendant wanted the press to be excluded from the preliminary hearing, and, after the State originally did not resist, the court closed the hearing and sealed the transcripts. Eventually, the Press Enterprise, and the State, sued to have the transcipts of the hearing released.
SCOTUS stated: "In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a "'tradition of accessibility implies the favorable judgment of experience, … we have considered whether the place and process have historically been open to the press and general public. …
Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question."
However, the “right” to access to open criminal proceedings, can be overriden by the rights of the accused. “[The] presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
I highly doubt that hiding the identity of everyone accused of a crime would meet that standard.
Your “compromise” really isn’t. There is no way that simply revealing the identity of the accused is essential to preserve the defendant’s right to a fair trial, and there is no way that it would be narrowly tailored to serve that interest. Of course, all this changes if the defendant is a juvenile.
[ol]
[li]Communities were much smaller at the time of the FF’s. It is much more likely that jurors knew the victim, accused, or some relative thereof, than it is now;[/li][li]The US, at least by the early 19th Century, had an intense newspaper culture;[/li][li]That culture did not aspire to balance and impartiality, but thrived on sensationalism; and[/li][li]Given the lack of “modern” entertainment choices, criminal trials were an entertainment source back then.[/li][/ol] Certainly, people who lived far away from the site of the crime didn’t hear about the crime, if at all, until much later than they would today, but those faraway folks aren’t part of the jury pool. The actual potential jurors were likely as well informed back then as current jury pools are today.
Assume you have been arrested and charged with murder. The TV shows your face, broadcasts your name, life history, whatever they can about you.
You fight it because you are innocent. When it comes time to pick the jury, how many of those people are going to have a bias against you simply because they saw the TV reports on your arrest? I made the point in the original bull session that there are going to be some people who think just because you got busted, you’re automatically guilty. Hopefully, they will get pitched on voir dire.
However, one of my friends argued that, given the pervase influence that TV has, is there a reasonable assumption to be made that there will be bias against the defendant? The potential juror could survive voir dire by stating that viewing the TV news didn’t bias him, but is that really the case? Wouldn’t it be better to err on the side of caution and keep the accused’s identity away from the media until the trial is complete?
If that is the case, it’s impossible to get a fair trial because there would be people who have a bias simply because you are the one who is on trial. It’s just delaying the point of developing the bias from seeing the arrest report on TV to seeing you in the courtroom in person.
A good friend of mine, a small-town criminal defense attorney, had a case just get delayed because the local news did a human interest story on his client. The judge decided the jury pool, already small because of the size of the town, would have been tainted by the information in the story and postponed the trial for a bit to allow people to forget about the story. Other options include change of venue or more rigorous jury selection. The justice system has had to deal with this from its inception. It is a minor hurdle in the greater scheme of things.
I think withholding the accused’s name would be wrong.
In lots of multiple murder cases, the guy only got convicted because his picture appeared all over and all the crimes were suddenly seen to be connected.
My only question with this statement is this–if jurors are likely to be biased against the defendant due to seeing his likeness and hearing his name as the accused on television, why are they somehow less likely to be biased against the defendant because they see his likeness and hear his name as the accused at the trial itself?
In other words, what about the television in specific makes a potential juror more likely to prejudge someone guilty merely because of the fact they’re the accused?
Oh, my heavens, I can’t believe this, but I’m actually going to agree with Clothahump to some extent. Will wonders never cease?
I think the media are more dangerous to a prisoner’s having a truly impartial jury that the trial itself because people aren’t especially conscious that they’re judging at the time. If they walk into the courtroom cold, hearing the facts and seeing the accused for the first time, most jurors are very aware that they are supposed to be impartial and try very hard to maintain that. Also, via the media, people are basically hearing at least some of the evidence for the prosecution without either cross-examination or rebuttal.
The fact that television is not an interactive forum subject to strict rules of procedure and evidence. A television show can be one-sided and non-factual in a way a court of law with two ethical, vigorous, and prepared attorneys arguing their case will almost never be. There is no defense attorney on television shows to call into question assertions or representations by the reporter. There is no prosecutor to poke holes in alibis speculated about by reporters which may exhonorate the accused.
Basically a television studio is not a court of law and the kinds of things which make good television make horrible trials. The things which make a good trial make horrible television.