Pre-trial prejudice 2.0: how YouTube generated news coverage is set to complicate the concepts of pre-trial prejudice doctrine and endanger Sixth Amendment fair trial rights.

• Author: Mastromauro, Matthew

1. Introduction

   Former United States Supreme Court Chief Justice Louis Brandeis once wrote, "[T]he progress of science, especially in the area of communication technology requires a shift from the letter to the spirit of the law." (1) Justices Brandeis and Earl Warren discussed how traditional methods of Fourth Amendment analysis would have to be altered to ensure that the philosophical underpinnings of privacy could withstand the new challenges posed by new technology, such as the telephone and telegraph. (2) In recent years, traditional means of communication, including the advances of the telephone and telegraph, have been outpaced by the rising tide of new Internet based communications, presenting greater public access to unfiltered content than ever before. (3) As the technological advancements of the telephone and telegraph prompted the beginnings of a change to the traditional analysis of the Fourth Amendment Constitutional protections, the unprecedented access, content, and coverage, provided by the Internet and in particular websites, such as YouTube, may necessitate a change to the traditional Sixth Amendment fair trial analysis. (4)

   The right to a fair trial by an impartial jury is a fundamental constitutional right. (5) Pre-trial news coverage of criminal trials often undercut the guarantee of an impartial jury by exposing prospective jurors to prejudicial information concerning the defendant. (6) The court is charged with ensuring that the pretrial proceedings do not impair the defendant's right to an impartial jury. (7) The guarantee of a fair trial by an impartial jury is an old one and the remedies are traditional, but these remedies must take into account the new challenge of Internet driven media sources.

   YouTube, and other video sharing websites cause many changes for the Fourth Amendment right assuring jury purity. YouTube's size and popularity h as grown concurrently with the speed and dissemination of the internet itself. 8 First, easier, more affordable, and faster Internet access has allowed YouTube to supplement, and in some places replace, the public's use of traditional news media. (9) Second, unlike traditional news sources, there are no controls or procedures to ensure that the content distributed on websites like YouTube is accurate. Third, content provided on sites like YouTube has outpaced traditional avenues of regulation.

   This note will address the development of the jurisprudence of the Supreme Court in analyzing the impact of the media access on fair trial, and how this development is being impacted by video sharing sites like YouTube. The next section will then analyze the unique challenges that video sharing websites present to fair trials. Finally, this note presents a discussion of possible solutions to this developing problem based on refocusing the traditional methods of jury control and suggests new regulatory schemes to attempt to put the internet genie back into the lamp.

2. History

   The Sixth Amendment guarantees criminal defendants a fair trial by an impartial jury. (10) A defendant's right to a fair trial one of the "fundamental rights" guaranteed by the Constitution. (11) First, defendants are guaranteed a right to a trial by an impartial jury of their peers. (12) Second, defendants are guaranteed that these juries will only consider the evidence presented at trial, and not extraneous information gathered outside of the confines and evidentiary protections of the court. (13)

   The possibility that pre-trial media publicity may create a prejudicial atmosphere, particularly in high profile trials, was a concept tested early on by the American court system. (14) Aaron Burr's trial for treason presented the young Supreme Court with the possibility that jurors would be unable to remove themselves from the public fervor concerning Burr's alleged actions. (15) Burr sought removal of his case from the district where he was being tried, arguing that he had been deprived his right to fair trial, since the pre-trial atmosphere in the district was charged due to the notorious nature of the allegations against him and the nature of press coverage in his case. (16) Chief Justice Marshall denied Burr's challenge and allowed the case to go forward reasoning that Burr's rights to an impartial jury were preserved where the court could ascertain from voir dire that the jurors could set aside any pre-conceived notions before sitting at trial. (17) In many ways, Marshall developed an ad-hoc approach to preventing pretrial prejudice from spilling into the jury, where the printed press and word of mouth were the primary means of communication. (18) Later courts made modifications where more modern and rapid means of communication are widely available, but have essentially followed Marshall's approach. (19)

   The majority of federal courts recognized that pre-trial prejudice may be presumptive or actual. (20) To prove presumptive prejudice, the defendant must show that the coverage of his case in the district is so intense and biased that prejudice could be presumed in such a "circus-like" atmosphere. (21) The court considers the nature of media coverage, and its exposure to the jury pool, when it is particularly close to the start o f trial. (22) The Supreme Court in Riedeau v. Louisiana noted the possibility that the extent and nature of pre-trial media coverage created such an atmosphere as to sufficiently guarantee the likely threat that the jury-pool would be prejudiced. (23) Alternatively, the criminal defendant may show that he suffered actual prejudice, and may do so through the presentation of voir dire of the potential jurors as to their prior knowledge and impressions of the defendants and the case. (24)

   The presumptive prejudice doctrine has developed out of the facts from some of the most sensational criminal trials, and utilizes rough guidelines for analysis. (25) The premiere case, in which the prejudicial impact against a defendant's fair trial rights due to the impact of pre-trial publicity through the media, was considered by the Supreme Court in Sheppard v. Maxwell. (26) The Sheppard case is well known because it was turned into a television series and motion picture. (27) Dr. Sheppard was accused and tried for the murder of his wife, although he maintained his innocence throughout the trial. (28)

   Dr. Sheppard's criminal trial was quite a sensation because of the high profile nature of the defendant, and the details that were released by the court to the pres as the case unfolded. (29) The press reported heavily on the details of the crime with many editorials on Dr. Sheppard's possible confession, infidelity, and likely guilt. (30) The coverage was so extensive that a majority of the jurors who sat at trial had admitted, under voir dire, to reading the stories about Dr. Sheppard. The Court still allowed the jurors to sit after they stated they would be able to put their prejudices aside and judge only based on the evidence presented at trial. (31) As the trial entered the courtroom, media coverage continued with further editorials about the guilt of the defendant and the ineptitude of the prosecution. (32)

   On review, the Supreme Court overturned Dr. Sheppard's conviction. (33) In its opinion, the Court noted that a survey of the press material that had accumulated against Sheppard was both so pervasive as to reach the majority of any possible jury pool, and so filled with salacious information concerning the facts of the trial information as to prejudice such a pool. (34) The nature and extent of such coverage, as well as the court's failure to control it, created a "circus-like atmosphere" where the guarantee of fair trial could not honestly be described to exist. (35) The Court noted that in similar circumstances where "reasonable prejudice to the defendant was likely to occur" the court should proactively approach steps to control such prejudice, including extensive voir dire, sequestering, and likely change of venue. (36) The Sheppard Court articulated the basic premise for courts to analyze pre-trial coverage "legal trials are not like elections to be won through the use of the meeting-hall, the radio, and the newspaper." (37)

   Courts have attempted to put into practice the general tenets of Sheppard, particularly the proactive stance that the Court urged in handling pre-trial media coverage. (38) When presented with a challenge that the pre-trial publicity has created a circus-like atmosphere as in Sheppard, courts will routinely review all relevant press coverage. (39) In this review courts will consider the breadth of the publication, content, and its proximity to the trial both in time and location. (40) In 1983, the ABA released guidelines for information that lead to bias when revealed through the press, including opinions of guilt or innocence, comments on the strength of evidence, the prior record of the defendant, and character details of the defendant including, but not limited to, refusals to submit to polygraph tests. (41) Courts note the different impact that the medium of coverage has upon the prejudicial nature of the press coverage. In particular, courts have noted that video makes a stronger impression on a possible jury member than the same information copied into a transcript. (42)

   It is fair to note that while the courts continue to espouse the Sheppard standard, which requires the court to take preventative measures up to and including change of venue for the defendant if a review of the news coverage created the reasonable possibility of prejudice. (43) The Supreme Court in Mu'Min v. Virginia had another opportunity to apply the Sheppard standard and its proactive approach. (44) The defendant in Mu'Min was charged with a murder allegedly committed after he escaped a prison work detail. (45) The local media sensationalized the facts of the murder resulting in the publication of numerous articles concerning the defendant and his...