Introduction

xv

introduCtion

This volume represents the American Bar Association’s fourth edi-

tion of standards addressing the tensions between the fair trial and

free press commitments of the U.S. Constitution.1 The first edition was

published in 1968,2 shortly after the U.S. Supreme Court famously

reversed the conviction of Chicago doctor Sam Sheppard on account

of the trial court’s failure to protect the defendant from the massive,

pervasive, and prejudicial publicity that attended his trial for mur-

dering his wife.3 The Sheppard case involved facts that are difficult to

imagine recurring today. During Sheppard’s trial, the courtroom was

packed with representatives of the news media, whose movements in

and out of the courtroom were so obtrusive that the lawyers and wit-

nesses frequently could not be heard.4 In the “carnival atmosphere”5 of

the trial, reporters were permitted to set up cameras in the courthouse

corridors and to broadcast images of the jurors and witnesses during

the trial.6 The press regularly reported prejudicial information that

was never introduced into evidence in the trial, including information

about Sheppard’s alleged extramarital exploits and refusal to take a lie

detector test.7 The jurors themselves were only minimally screened for

their exposure to pretrial publicity, were not admonished to avoid the

extensive publicity about the case during breaks, and were not seques-

tered until their deliberations—during which they were permitted to

make telephone calls.8 And because their names, addresses, and pho-

tographs were repeatedly broadcast throughout the trial, jurors were

1. See U.S. C. amend. I (“Congress shall make no law . . . abridging the freedom of speech,

or of the press”); U.S. C. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed”). These sometimes competing interests have been characterized as “two

of the most cherished policies of our civilization.” Bridges v. California, 314 U.S. 252, 260 (1941).

2. ABA S  C J, F T  F P (1st ed. 1968).

3. Sheppard v. Maxwell, 384 U.S. 333 (1966). Sheppard did not represent the first time the

Supreme Court reversed a criminal conviction because of concerns about jurors’ exposure to preju-

dicial extrajudicial material. See, e.g., Estes v. Texas, 381 U.S. 532 (1965); Turner v. Louisiana, 379 U.S.

466 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); Marshall v.

United States, 360 U.S. 310 (1959). However, Sheppard resulted in the Court’s most fulsome discus-

sion to date of the remedial measures available to trial courts to counteract prejudicial publicity.

4. Sheppard, 384 U.S. at 344.

5. Id. at 358.

6. Id. at 344–45.

7. Id. at 356–57, 361.

8. Id. at 349, 353.

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xvi

Fair Trial and Public Discourse

exposed to extrajudicial commentary about the case from both friends

and strangers.9

Viewing these circumstances in their totality, the Supreme Court

held that Sheppard was deprived of his right to “a trial by an impar-

tial jury free from outside influences.”10 The decision, however, did

more than correct a singular injustice—it was a call to arms to trial

judges to exercise their supervisory authority over their courtrooms

and courthouses to protect the integrity of future trials,11 including by

“rule and regulation.”12 To that end, the Supreme Court endorsed a

number of specific measures that the judge presiding over Sheppard’s

trial should have employed. For example, the Court stated that the

trial court should have set greater limits on the number of reporters

present during the trial and the places to which they had access so

that their physical presence would be less disruptive.13 The court also

should have taken greater care to insulate the witnesses from press

accounts of other witnesses’ testimony—without which the court’s

exclusion of the witnesses from the courtroom prior to their testimony

was rendered meaningless.14 It should have instructed the jurors more

firmly on the necessity of avoiding extrajudicial publicity about the

case and queried them more rigorously about what they had seen and

heard.15 It should have considered sequestration of the jury during the

trial, given the extent of prejudicial publicity in the case, as well as

a postponement of the trial until the publicity abated or transferring

9. Id. at 353.

10. Id. at 362.

11. See id. at 362 (“From the cases coming here we note that unfair and prejudicial news com-

ment on pending trials has become increasingly prevalent. . . . Given the pervasiveness of modern

communications and the difficulty of effacing prejudicial publicity from the minds of the jurors,

the trial courts must take strong measures to ensure that the balance is never weighed against the

accused.”). The advisory committee that drafted the first edition of the Fair Trial-Free Press Stan-

dards was created in 1964 as one of six committees charged by the ABA with drafting minimum

standards in various fields relating to the administration of criminal justice. See Paul C. Reardon,

Report of the Committee on Fair Trial-Free Press Standards, 54 A.B.A. J. 343, 343 (1968). The impetus to

include a set of standards specifically on Fair Trial-Free Press issues came from the recommenda-

tions of the Warren Commission, which investigated the assassination of President John F. Kennedy

and observed that Lee Harvey Oswald might never have received a fair trial in any venue on

account of prejudicial pretrial publicity. See Edward Andrew Norwood, The Prosecutor and Pre-Trial

Publicity: The Need for a Rule, 11 J. L P. 169 n.11, 170 (1986–87).

12. Sheppard, 384 U.S. at 363.

13. Id. at 358.

14. Id. at 359.

15. Id. at 357.

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