On June 14, 1994, the Los Angeles coroner's office revealed that Nicole Brown Simpson, O.J. Simpson's former wife, and Ronald Goldman died as a result of "'sharp force injuries,'" possibly knifeinflicted stab wounds.(1) Not long after O.J. Simpson's arrest in connection with the murders,(2) an employee and a part-owner of a Los Angeles cutlery store, Jose Camacho and Allen Wattenberg, alleged that Simpson had recently visited their store and had purchased a fifteen-inch knife.(3) They also claimed that Simpson had requested that they sharpen the knife before turning it over to him.(4)
Although Camacho and Wattenberg testified at Simpson's preliminary hearing, they had previously shared their information with the public by selling their stories to the National Enquirer.(5) Although tabloid media publications often pay for stories, Camacho and Wattenberg received an uncommon $12,500 in exchange for their story.(6) After criminal proceedings against Simpson began, his defense counsel moved to dismiss Camacho, claiming that his acceptance of the money made him untrustworthy.(7) When that motion was denied, Simpson's defense team responded by assailing Camacho's credibility through vigorous questioning about the transactions with the tabloid.(8)
Shortly after Camacho and Wattenberg made their deals with the National Enquirer, a witness named Jill Shively surfaced, also claiming to possess information that inculpated Simpson. She alleged that she saw Simpson speeding through the streets near the murder scene "like a madman"(9) in his now infamous white Bronco on the night the victims were killed.(10) Like Camacho and Wattenberg, Shively first opted to tell her story to tabloid media organizations and accepted payments for it--$5000 from the television tabloid Hard Copy and $2600 from the Star, a supermarket tabloid.(11) When the prosecution learned Shively had taken money for her story, it dropped her from its witness list.(12)
The actions of Camacho, Wattenberg, and Shively(13) represent a new species of an old problem: extrajudicial statements by trial participants. Paying individuals for information, known as "checkbook journalism,"(14) is a relatively new practice which entails its own peculiar package of risks to fair trials.(15) By taking money from a tabloid media outlet in exchange for information about which she will testify in court, a witness may subvert a trial's integrity and a defendant's right to a fair trial.
The actions of Camacho, Wattenberg, and Shively probably represent the most recent and most conspicuous examples of checkbook journalism's foray into criminal proceedings. The Simpson case, however, is certainly not the first time checkbook journalism has played a part in a criminal prosecution or investigation. Other prominent examples include the William Kennedy Smith trial,(16) the Pamela Smart trial,(17) the Jim Bakker trial,(18) the Amy Fisher trial,(19) and the Michael Jackson investigation.(20)
Out-of-court statements by criminal trial participants can mar a trial's integrity and thus undermine a defendant's Sixth Amendment right to a fair trial.(21) They can similarly undercut public faith in the the justice system and contribute to the unreliability of verdicts. To guard against these risks, trial judges have employed a variety of devices, including extensive voir dire of jurors,(22) postponement of trials,(23) change of venue,(24) change of venire,(25) jury sequestration,(26) special jury instructions,(27) and imposition of gag orders.(28)
In September, 1994, the California state legislature, in response to the conduct of witnesses in the Simpson case,(29) addressed the problem of tabloid-paid witnesses in criminal cases by enacting legislation prohibiting the sale of any "information obtained as a result of witnessing [an] event or occurrence" that might pertain to a criminal prosecution.(30) California Assembly Speaker Willie Brown, the bill's principal author, repeatedly stressed that the state's checkbook journalism law does not prevent witnesses from giving information to any media outlet they choose, but only from receiving payment for doing so.(31) The state legislature justified the measure on Sixth Amendment grounds, claiming that it was necessary to ensure a fair trial for criminal defendants.(32)
This Comment analyzes California's statutory effort to accommodate the competing First and Sixth Amendment interests. Part I explores the parameters and underlying rationales of both the First and Sixth Amendments and the potential points of conflict between them. Part II begins by considering ways in which the statute might serve Sixth Amendment interests and, then, shows how the statute's attempt to serve these interests places a burden on free speech rights. This Part explains why the California legislative effort does not achieve the Supreme Court's avowed aim of resolving conflicts between the First and Sixth Amendments "without essentially abrogating one right or the other."(33) Part II also proposes two alternate solutions for achieving the statute's goals while maintaining an acceptable balance between the rights in the First and Sixth Amendments. Finally, Part III concludes that these alternatives achieve a solution that is more respectful of traditional First Amendment policy considerations than the current statutory solution promulgated by the California legislature.
TWO CONFLICTING CONSTITUTIONAL GUARANTEES
One of the principal guarantees of the Sixth Amendment is the right to trial by an impartial jury. This Part begins by explaining the meaning that the Supreme Court has assigned to that concept and then details the methods and feasibility of showing jury prejudice. The discussion next considers the First Amendment right to free speech and elucidates two common policy justifications for this right. It also explores the relevance to First Amendment jurisprudence of distinguishing content-neutral from content-based restrictions on speech. Finally, this Part concludes by surveying ways in which the rights in the First and Sixth Amendments can conflict with one another, focusing on how the Court has attempted to accommodate such conflicts.
The Sixth Amendment Right to a Fair Trial
The Sixth Amendment guarantees every criminal defendant the right to a public trial by an impartial jury.(34) Courts and commentators commonly refer to this as the right to a "fair trial."(35) The impaneling of an impartial jury is necessary but not sufficient to assure that a defendant's fair trial right is respected.(36) The state must also ensure that the right is maintained throughout the course of trial proceedings.(37) The central value served by the Sixth Amendment is fairness. All of the protections guaranteed by the Sixth Amendment, such as an impartial jury,(38) the right of confrontation,(39) and the right to counsel,(40) share the property of promoting fairness in adjudication.
The text of the Sixth Amendment does not explain what constitutes juror impartiality.(41) A certain tension pervades the Sureme Court's pronouncements on the Sixth Amendment right to a fair trial. The Court has characterized it as "the most fundamental of all freedoms"(42) and as a right "essential to the preservation and enjoyment of all other rights."(43) The Court has even asserted that the fair trial right must be maintained "at all costs."(44) Endorsements of this kind might lead one to conclude that the Court would allow the fair trial right to trump other constitutional rights to the extent they are in conflict, and that the Court would tolerate only minimal juror partiality.
In fact, the Court's Sixth Amendment jurisprudence does not bear out either of these suppositions. The Court has affirmatively indicated that no hierarchy exists among the rights enumerated in the first ten amendments.(45) Hence, notwithstanding the language in some of the Court's opinions, the right to a fair trial cannot simply trump other potentially conflicting constitutional guarantees.(46)
Furthermore, the Court has consistently relaxed the permissible amount of prejudicial information to which a juror may be exposed, as well as the permissible firmness with which she may hold a preconceived opinion about the case or the defendant. The Court has never insisted that a jury have no knowledge of or opinion about the defendant or her alleged crime.(47) A juror, therefore, can be simultaneously impartial and opinionated.
The Supreme Court offered further guidance as to what constitutes disqualifying bias in the case of Irvin v. Dowd.(48) In Irvin, the Court reiterated its view that mere familiarity with "the facts and issues" involved in a case does not by itself amount to partiality.(49) Rather, a juror is impartial for constitutional purposes if she is able to "lay aside [her] impression or opinion" and "render a verdict based on the evidence presented in court."(50) The defendant has the burden of proving that any particular juror does not meet the standard by showing actual bias.(51) One commentator has described this burden as "tremendous" because "it is up to the accused to identify the bias, demonstrate its intensity, and convince the trial judge that the jurors' 'impressions' are not light but are firmly etched within the recesses of the mind."(52)
However, the Irvin Court left open a small window for defendants seeking to prove juror bias by creating a second category of bias which also violates the Sixth Amendment: presumptive bias. Where a "'pattern of deep and bitter prejudice' [against the defendant] ... throughout the community" is revealed, a presumption of partiality may properly arise.(53) Even when jurors profess an ability to set aside their preconceptions regarding a defendant's guilt, it may, depending on the circumstances surrounding the case, be presumed that the jurors' claims of impartiality are untrustworthy and, therefore, that the defendant cannot or did not receive a...