Standard 8-5.3. Mitigating the Effects of Publicity on the Fairness of a Trial

• Library: ABA Standards for Criminal Justice--Fair Trial and Public Discourse (ABA) (2019 Ed.)

Standard 8-5.3. Mitigating the Effects of Publicity on the Fairness of a Trial

If a case has been the subject of significant publicity, the court should consider the following options, to the extent available under applicable law in the jurisdiction and subject to the standards elaborated below, as means of mitigating the prejudicial effects of such publicity. The court should select the most effective option or options in light of the circumstances presented that will be the least disruptive to the proceedings and to jurors. The options include:

(a) ordering a continuance;
(b) conducting voir dire as to pretrial publicity;
(c) providing clear cautionary instructions to the jury from the outset of jury selection;
(d) providing clear cautionary instructions to court personnel, parties, lawyers, and witnesses;
(e) providing lawyers with additional peremptory challenges;
(f) impaneling additional alternate jurors;
(g) importing jurors from another district or locality;
(h) ordering a severance;
(i) impaneling an anonymous jury;
(j) sequestering the jury; and
(k) ordering a change of venue.

Related Standards

ABA Standards for Criminal Justice, Trial by Jury 15-1.4, 15-2.4, 15-2.9, 15-4.1, 15-4.3, and 15-4.4 (3d ed. 1996)

ABA Standards for Criminal Justice, Joinder and Severance 13-3.2 and 13-4.2 (1978)

ABA Principles for Juries & Jury Trials 7, 9, 11, and 18 (2005)

Commentary

This Standard provides a list of 11 mechanisms for mitigating the effects of publicity on the fairness of a trial. They are arranged in ascending order of the burden they impose on the judicial system and the community. Thus, the first alternative, ordering a continuance until the publicity subsides, is considered the least burdensome mechanism. The second-to-last alternative, sequestering the jury, is considered very burdensome and today is rarely used except in the most highly publicized cases because of the fiscal cost and the resentment it can engender among jurors.⁹⁰ The last alternative, ordering a change of venue, is considered the most burdensome and least desirable alternative.⁹¹ In today's media environment, it also may be of limited utility. The prior edition of these Standards discussed several of these mechanisms but did not present a comprehensive list or any indication of the relative burdens they impose. The goal in providing the list in this format is to provide trial courts with a checklist of alternatives that should be considered in order, in combination and as appropriate, to preserve the fairness of the trial, and some indication of their relative costs. The only mechanism presented in...