Trial by the Press

AuthorBy Major Ronald B. Stewart
Pages02

This article examines the problem of pvejudicial news reporting in criminal trials. The author discuses the reports themselves, the standard of review, the existing safeguards and the possibility oj new ones. It is oom eluded that the best controls, cornistent with both fair trial and free vress. ore those exerted intemallu hu the courts and hai associations.

I. INTRODUCTION

The theory of OUT iystem 1s that the conclusions to be reached in B ease will be induced oniy by evidence and argument in open Court, and not by any outride influence. whether of private talk 01public prmt.'

The eloquence and correctness of the shave evaluation of our system of justice by Mr. Justice Holmes can scarcely be denied,

In Bridges v. California* hlr. Justice Black stated the same principle in different language:

The very ward "trial" connotes decismna on the e3idence and arguments p~operly advanced in open emit. Legal trials are not like eleetiona. ta be won through the use of the meeting hail, the radio, and the newspaper.'

Although the above two cases involved contempt of court convictions, and although they reached different results, it would appear that the principle announced leaves little doubt that the administration of justice is the prwince of the courts, not the news media. Nevertheless, the Supreme Court of the L'nited States in 1966 observed that the problem, far from disappearing, is getting worse : 4

'This article was adapted from a theaii presented to The Judge Advocate General's Sehwl, C.S. Army, Charlottesviile. Virg~ma. while the author was a member of the Sixteenth Advanced Course. The opinion3 and cmclusions presented herein are those of the author and do not neeesaarily represent the views of The Judge Advocate General's Sehaoi or any orher governmental

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,

'*JAGC, US. Army; Staff Judge Advocate, Aberdeen Prowng Ground, Maryland; B.S., 186'7, LL.B., 1969, University of Kentucky; admitted to practice hefore the Kentucky Court of Appeals and the U.S. Court of Mil,+.."_____l_,

__ii

'Patteram V. Colorado, 206 U.S.

414. 482 (1907)

'Bridges V. Califarnia, 314 US. 262 (1941). :Id. at 271.

Sheppard s. Maruell, 584 US SSS (1966).

-~ _.._,

From the eases coming here we note that unfair and prejudicial news comment on pending trial$ has become increasingly prevalent. Due process requires chat the accused receive B trial by m impartial jury free from outside influences Given the pervasiveness of modern eommunicatmnr and the difficulty of effacing p~ejudieial publicity from the minds of the iumrs. the trial Courts must take strong measures ta ensure that the balance IS never weighed against the accused.'

While the "strong measures'' referred to might conceivably include the contempt the Court pointed to less drastic measures bearing directly upon the conduct of the trial which should have been employed and which may ser~eto preclude pre-

judice in future cases:

It is clear that dome measures must be taken to provide adequate protection from prejudicial news reports. This may, unfortunately, give rise ta B conflict of two cherished constitutional rights. Both the right to a free press ' and the right to trial by an impartial jury are basic ingredients of our form of gavernrnent.

This conflict is not new. For example, in 1846 one commentator was moved to observe:

Our3 is the greafesc newspaper reading population in the world.

. . , In the ease of B particularly audacious crime that has been widely discussed It ia utterly impossible that m y man of common mtelligenee, and not wholly secluded from Poeiety. should be found who had not formed an opinion.*

What is new however is the derelapment of modern communication and new distribution techniques ta the extent that a crime is no longer a local affair. There is little reason to believe this trend will be reversed. The appalling prospeet that, in some cases, it may prove impossible to gather a jury from even the four corners of the earth each of whom can enter the courtroom, "in-different as he stands unsworn,"" is difficult to aroid. Of much more immediate and practical concern is the problem of im-paneling "an impartial jury of the state and district wherein the

'Id. at 362, per Mr. Justice Clark'See llaryland V. Baltimore Radio Show, 838 0.S. 812 (1950)i Goodhart,

Newepspen ond Contmpt o i Court ~n Ensiiah Law, 48 H B Y . L REV. 886 (1935).

'Sheppard V. Piuweli. 384 U.S 333 pwmm (1966)'U.S. CORST. amend. I.'U.S. CONST. amend. VI,

'I

Tnoi by Jury in New Ywk, 9 L. REP. 198, 198 (1846).

"The first atatement of this ideal but difleult nom IS g~nerally attributed

to Lard Cake; Go. Lln. (1566) ; me, w., Rideau V. Louisiana. 378 US

38 *M

(1968),

TRIAL BY THE PRESS

crime shall have been committed." The functional utility of long employed protective measures, such as a change of venue, is being seriously threatened; and this threat can reasonably be expected to increase, rather than abate.

It may well be that military trials are more seriously threatened than civilian trials. Whereas only a small percentage of civilian convictions result from jury trials.18 in all courts-martial both the findings and sentence are decided by laymen, rather than professional judges, even in guilty plea cases.

Even in civilian jurisdictions, while the percentage may be small, the number is significant." An argument that either is small begs the iswe. The right to a fair trial is constitutionally guaranteed in all criminal prosecutions, not just most of them.Ib

The purpose of this inquiry is not to discover whether either our right to a fair trial or our right to a free press must prevdl at the expense of the other,lb neither is it intended here to speculate upon whether the activities of the press must be volun-tarily restricted.'. The real purpose is to search for a method whereby those responsible for the administration of justice, through the me of appropriate internal measures and controls, may unilaterally guarantee to every accused an impartial jury.

Those of us involved in the high calling of the administration of justice are often wont to complain of the real, or imagined, excesses of the press. This is certainly an easier task than the examination of our own shortcomings and inadequacies and far easier than the development of workable measures to insure the essential fairness of a jury trial. The problem with thia approach is twofold. First, it i8 non-productive in that it seeks to place the blame for failure on outside forces thus making the acceptance of failure palatable. Second, it tends to justify, on the assumption that the solution is beyond the reach of our corrective powers, the shirking of reaponsibility by those whose duty it is to insure the impartial administration of justice.

We must, therefore, take it upon ourselves to insure that jury trials will be without undue outside influence. And for those of

" U.S. Consr. amend. VI

'I See AXmRICAN B*R ASSOCUTION PROJECT ON M~NIMUM STAND-S FOR CRIMINAL JUSTICE, STANDARDS

RELATING TO FAIR TRIAL AXD FREE PRESS. Tentative Draft 22 (1966) [hereafter cited 88 RE-N REPORT, Tentative nrair,.

.

.. ., .

" R D m x REPORT, Tentative Dmft, 2844.

"U.S. Cors~.amend. VI,'Irvin Y. Dawd, 366 U.S. 717, 710 (1961) (separate opinion, Frank- "United States Y. Powell, 171 F. Supp. 202 (N.D. Cnl. 1969).furter, J , )

A 0 0 1,148 39

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43 MILITARY LAW REVIEWus connected with military justice, it must be determined whether different procedures may be required by the peculiarities of military law, location, and procedure.

Frequently, in both civil and mditary courts, the burden of showing specific prejudice from published matter has been placed upon the accused.'* In addition, the reaponce of a juryman to the effect that he was unmoved by published accounts and could render a far and impartial verdict has long been accorded almost complete credence." More recently a senes of cases,?: culminating in Sheppard v. .!4az~e21,~~has indicated a growing concern as to whether this treatment of the problem 1s adequate or just.

An ancillary problem, conduct of the members of the press which interferes with the orderly procedure of the trial, is often injected into case8 of this type.li Far the purpme of clarity it is proposed here to consider not the conduct of the members of the press in and around the courtroom, but the content of the material published in the press, and the tendency it may hare to affect the juryZ' in their decision of the case.

PREJUDICIAL XEWS REPORTS DEFISED

  1. SCEJECT MATTER OF REPORT

    Not all news reports are prejudicial, even if they reach the jury.*. In the vast majority of the cases reported by the news

    "Beck Y. VSaahmgton. 368 C.S 641 (1962) ; Iriin V. Dowd, 366 U.S.

    (1961); United States Y. Carter, 9 C.S.C M.A 108, 26 C.31 R. 370 (1966),

    "Rideau V. Louisiana, 373 US

    723 (1963); Ysrehall V. United Statee,

    310 (1958): Briggr 7,. United S~stes,

    221 F.2d 636 (6th Cir. 19661.

    "384 U.S 333 (1866).

    "'The use of the term press herein is not intended to exelude orher than printed news media but 1s adopted ai a term of em~enienee to be used in the broadest sense ta melude the entire new8 gathering and distribution industry.

    "Set, e.#., Sheppard Y. Maxwell. 684 US. 333 (18661; Estea 7. Texas, 381 U.S.

    632 (1961): Unmd Stater V. Accardo, 298 F.2d 133 (7th Cir. 1962) "The use of the term publish ~n its VBT~OYS forms herein I% intended To melvde d l means of publrcatlon whether by p m t , broadcabt, m other means.

    '*The term jury 18 Intended to mean the finders af fact. In mihtars law this body is called the court This me, however. has B tendency to be confullng as it 1s applied to bath judeea indrwdually and to the decision making body 8s B whole ~n ewilian eases.

    MeHenry V. Cmted States, 276 Fed. 761 (D.C Cir. 1921) : Miller V.

    Kentucky, 40 F.2d 820 (6rh Cii. 1860) : ACM 8768, Doyle, 17 C N.R. 616 (1860.

    40 A00 112tB

    160 US

    TRIAL BY THE PRESS

    media in any jurisdiction, the report amounts to no more than and account that a certain crime...

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