Pretrial Publicity: Not Only a Threat to the Defendant: HOW THE COURT OF PUBLIC OPINION IMPACTS THE RIGHT TO A FAIR TRIAL IN A COURT OF LAW - FOR BOTH SIDES.

• Author: Patrick, Wendy L.

Pretrial publicity pervades the integrity of criminal trials by affording the public a sneak preview of the evidence, both admissible and inadmissible. The jury's charge is to decide a case based on the evidence presented in court. Yet due to the pervasive nature of pre-trial publicity through the broad spectrum of communication channels, some suspects are tried, convicted, and sentenced in the court of public opinion before a single piece of evidence is introduced in a court of law.

But pretrial publicity does not always favor the prosecution. When I first started practicing criminal law as a deputy public defender, fresh out of law school, prosecutors were much more popular than they are today. Accordingly, acknowledging the politics of public sentiment, we recognize that pretrial publicity impacts more than a defendant's right to a fair trial. It can impact the prosecution's right to a fair trial as well.

FRAMING THE NARRATIVE

As an example, depending on your facts, there may be a difference of public opinion about whether your case is about justice for the decedent, or injustice in charging the defendant with the crime. This dispute has permeated some high profile homicide prosecutions such as the trials of Kyle Rittenhouse and George Zimmerman, where the aggressors claim self-defense. Even civil cases spark this contentious public dynamic, as illustrated in the headline-grabbing Johnny Depp--Amber Heard dueling defamation trial. Divided over who was actually the victim, each side had a cheering section of supporters and detractors, referred to as "Team Johnny" and "Team Amber."

The point is that negative publicity is not directed only towards the defendant. Victim blaming and third-party culpability issues can impact a potential jury pool in a wide variety of ways that often arise in the deliberation room, and sometimes depend on deliberation style. Researchers have examined the ways in which negative pretrial publicity biases juror decision making, depending on towards which party the negative evidence is directed.

PRETRIAL PUBLICITY AND JURY DELIBERATION

Christine L. Ruva et al. (2022) investigated the role of pretrial publicity and jury composition on the deliberation process. (1) Perhaps not surprisingly, they found that jurors exposed to negative-victim information demonstrated a bias in favor of the defense, while jurors exposed to negative-defendant information were biased in favor of the prosecution.

But they also considered...