Chapter 8 Dealing with the Media

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 8 Dealing with the Media

We need to briefly recap the body of law concerning relations with the media and media's impact on trials, because murder cases tend to attract media interest. If the murder case is particularly gruesome or involves multiple murders, one can almost depend upon national interest. Single murders may even generate national interest, such as the O. J. Simpson trial in California.¹ But O. J. Simpson was a celebrity, which could well explain why there was such media frenzy over that particular trial.² However, even fairly common (but nevertheless deplorable) domestic violence homicides involving people who are not celebrities can sometimes attract national media attention. Why the national media focuses on only a handful of domestic violence murders to the exclusion of hundreds of others is a bit of a mystery, but they do. An example of such a case is the Scott Peterson trial for the murder of his pregnant wife, Laci Peterson, also in California.³ In the quest for sensational news reports, media may be insensitive to grieving family members of murder victims. This may result in family members being subjected to continuous questions from journalists, continuous reports of their loved one's death, and perhaps even horrifying visual images. Such media attention can affect how the victim's family members interact with the prosecutor and the criminal justice process.

Publicity Pitted Against the Necessity of Conducting a Fair Trial

"Trial by media" has become a familiar phrase to many lawyers. It pits competing constitutional principles against each other: freedom of the press, the right to a fair trial, and the right to a public trial. Trial by media can cut both ways. It can result in the public condemnation of a seemingly guilty (but as yet untried) defendant—or it can result in the public's perceiving that a defendant is being "railroaded" (before the prosecution has presented any evidence). Media attention can also bring perplexing problems such as how to handle constant media references to inadmissible evidence. Each of these problems can make selection of an impartial and untainted jury a difficult, if not impossible task.

As early as 1959 the U.S. Supreme Court set aside a federal conviction where the jurors were exposed "through news accounts" to information that was not admitted at trial.⁴ In 1965 the Court recognized that media presence in the courtroom and publicity outside of the courtroom can sway the fairness of a trial and can adversely affect a defendant and his case.⁵ In 1966, the Court reemphasized the principle that pretrial publicity can disrupt the fairness of a trial in the case of convicted murderer Sam Sheppard.⁶ In the opinion, the Court reversed the conviction, pointing out that the trial judge could have done much more to control the publicity and the "carnival atmosphere" in the courtroom. Interestingly, a 2004 study on the effects of publicity in more than 1,100 felony murder and bank robbery trials concluded that while pretrial coverage usually casts the defendant in a negative light, there was no statistical difference between guilty verdicts in trials that received heavy media attention and trials that received virtually no attention.⁷

Prosecutors' Immunity and Constitutional Violations

A prosecutor's involvement with media publicity can be a constitutional violation of the defendant's rights. Such violations can result in a limitation on the immunity of prosecutors. It is, therefore, useful at this point to recap the concepts of prosecutorial immunity. In 1976, the U.S. Supreme Court ruled that prosecutors were absolutely immune from liability for acts performed in their core prosecution functions.⁸ If a lawsuit alleges that a prosecutor's misconduct was not committed in the performance of these core prosecutorial functions, the prosecutor may be entitled only to qualified immunity for that conduct. Functions that are entitled to qualified immunity include conducting press conferences and going out in the field with police officers to make arrests and serve search warrants. Qualified immunity is extended unless a reasonable person in the position of the prosecutor would have known that the action taken would violate the plaintiff's federal or constitutional rights.⁹

Specific Violations of Defendant's Rights by Publicity

The televising of a defendant in the act of confessing to a crime has been held to be inherently invalid under the due process clause of the 14th Amendment, even without a showing...