Section 21.53 Pretrial Publicity

• Library: Criminal Practice 2012 Supp

7. (§21.53) Pretrial Publicity

Pretrial publicity may result in a jury that is prejudiced against the defendant. A presumption of prejudice arises from pervasive and inflammatory press coverage, Rideau v. La., 373 U.S. 723 (1963), or from a trial conducted in a carnival atmosphere, Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Tex., 381 U.S. 532 (1965). Trial by such a jury violates due process of law. Irvin v. Dowd,366 U.S. 717 (1961); Rideau, 373 U.S. 723. But the mere fact that the jurors are aware of the criminal record of a defendant or prior court proceedings by means of the news media does not automatically constitute disqualification. If the jurors can set aside what they saw, read, or heard and be guided only by what the evidence shows, there is no “actual prejudice.” Murphy v. Fla., 421 U.S. 794 (1975). The test is one of the “totality of the circumstances.” Id. To ensure a fair and impartial jury, various methods are available to counsel, including the following:

· Gag orders may be...