10.3 Prejudicial Publicity

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

10.3 PREJUDICIAL PUBLICITY

10.301 In General. In light of the speed and pervasiveness of modern communications media, prejudicial publicity threatens the constitutional guarantee of a public trial by an impartial jury. ⁴¹ An accused in a

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criminal prosecution has a constitutional right to receive a fair trial, culminating in a fair and just adjudication based only on evidence properly submitted to the trier of fact.

Pretrial hearings, such as grand jury proceedings, preliminary hearings, bail hearings, and hearings on motions to suppress, are fertile sources of prejudicial publicity. Harmful pretrial publicity includes publicity that assumes the guilt of the accused, reports inaccurate or inadmissible evidence, or inflames the community. Since the jury has yet to be impaneled, such assertions and facts, irrelevant to issues of legal culpability and inadmissible in evidence at the subsequent trial, may make it impossible to impanel a jury that satisfies the requisite standard of impartiality. Counsel for the accused should, therefore, attempt to persuade the court to use the procedural devices discussed in paragraph 10.302 to prevent adverse information from reaching the public.

Counsel should also use these procedural devices at the trial stage to limit the impact of prejudicial publicity. Counsel must bear in mind the ethical injunction against making a public extrajudicial statement that he or she knows or should know will have a substantial likelihood of interfering with the fairness of a jury trial. ⁴²

10.302 Judicial Authority to Control or Prevent Prejudicial Publicity.

A. Pretrial Proceedings. Subject to the limitations described below, the press and the public may be excluded from a pretrial hearing if the exclusion is necessary to protect the accused's right to a fair trial. Publicity concerning pretrial suppression hearings poses special risks of unfairness because it might sway public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial. ⁴³ The Virginia Code also provides that:

[i]n the trial of all criminal cases, whether the same be felony or misdemeanor cases, the court may, in its discretion, exclude from the trial any persons whose presence would impair the conduct of a fair trial, provided that the right of the accused to a public trial shall not be violated. ⁴⁴

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This provision has been interpreted to extend to pretrial proceedings as well as to the trial itself. ⁴⁵

The preliminary hearing, in particular, can be the source of damaging prejudicial publicity. As a practical matter, the accused will rarely present evidence to refute the charges of the prosecution during a preliminary hearing. Only incriminating evidence presented by the prosecutor is customarily introduced at a preliminary examination. The rules of evidence also might not be strictly enforced, and evidence could be introduced at the preliminary hearing that would be inadmissible at the subsequent trial. If it is clear that the prosecutor can sustain his or her burden of demonstrating probable cause for certifying the case to a grand jury, a waiver of the preliminary hearing can work to the advantage of the accused by preventing adverse evidence from being aired in a public forum.

The action of a grand jury can also generate prejudicial publicity even though the Virginia Code imposes an obligation of secrecy upon grand jurors. An effective means of preventing prejudicial information from getting to the public during grand jury proceedings is to waive the right to indictment by the grand jury. Unless there is clearly no credible evidence against the accused, little would be lost by exercising this waiver.

B. The Press. In the past, counsel could move the court to order the media not to report any statements about the character of the accused, his or her prior record, any opinions as to his or her guilt or innocence, or any evidence not introduced. However, the constitutionality of direct court-ordered restraints has been questioned.

In Nebraska Press Ass'n v. Stuart, ⁴⁶ a court order restraining the news media from publishing or broadcasting accounts of confessions or admissions of the accused was held to violate the freedom of the press, since it had not been shown that alternatives to the prior restraint on the news media would not have sufficiently mitigated the adverse effects of pretrial publicity or that the restricting order would serve its intended purpose. The Supreme Court has also rejected a court order that barred the publication of the identity of a juvenile charged with delinquency by murder. ⁴⁷

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C. Exclusion of the Public and the Press. A criminal trial may not be closed to the public upon the unopposed request of a defendant without a demonstration that the exclusion is required to protect the defendant's superior right to a fair trial or that some other overriding...