The trial system is in a form of crisis. (2) Recently, the United States Supreme Court effectively recognized that we no longer have a jury system. (3) Instead, we have a plea bargaining system with the remote possibility of a jury trial at the very tail end of that system. (4) Given the pervasiveness of sensational news stories, the option of settlement may appear more attractive to a litigant because it avoids the public display that often accompanies high-profile trials. (5) This also serves a benefit to nervous judges who, without the stress of a trial, may avoid the onslaught of media pressure for court documents, comments regarding the case, or permission to observe certain proceedings. (6) Finally, settling outside of trial also places bargaining chips in the hands of defendants who might face weak odds for trial. (7)
Litigants' desire to avoid trial is likely bolstered by the prevalence of media that now spreads mass amounts of information and misinformation to consumers and jurors at an alarming rate through use of smart phones, laptops, and tablets. Provocative images and half-truths of high-profile trials reach out of television screens and into the bedrooms of incensed viewers. Bias in the media's focus of civil trial coverage, which arguably favors plaintiffs' civil judgments as opposed to defense's victories, may also scare litigants from the prospect of going to trial. (8) As a consequence of increased media coverage, the idea of a contained and secure jury information space is increasingly threatened by new media. (9) The courts are in a transition to which the Internet is key. (10) This is a transition at the heart of a tug-of-war between the nature of jury trial and its explosive clashes with hungry media and a volatile public.
Ideally, a jury trial creates a separate, isolated information space, which is insulated from the outside. The jury is presented with a crafted body of evidence and called upon to make a decision. (11) The development of the Internet presents an inflection point in the evolution of the communications environment in which judges and the architects of trial attempt to pull off a form of magic. These architects, the jury and the trial system, actually create a truth. This truth is intended to be free of external influences. Remarkably, this is a system built on an idea that if almost any dispute in our society is run through the judicial machinery known as trial, out the other end will pop a manufactured truth. Though, with the advent of today's technological landscape and the ease with which jurors obtain media, that machine has developed its fair share of kinks. (12)
What makes the truth created by this judicial machine credible to a wider public has much to do with the control of the trial system's seemingly delicate information space. The shifting communication environment threatens this view of the jury trial and the exponential speed with which the environment is shifting presents a problem that must be addressed now with radical new ideas. (13)
THE BIRTH OF THE COURT'S FEAR OF MEDIA IN THE COURTROOM
I started my judicial career as a law clerk for Justice John Harlan. His was the crucial fifth vote in the first big information case, Estes v. Texas. (14) Billie Sol Estes, a Texan charged with swindling, was tried with cameras in the courtroom. (15) At the time of his trial and the resulting 1965 United States Supreme Court decision, newsmen lugged mammoth cameras that rested on bulky tripods, and forty-eight states prohibited the use of cameras in the courtrooms. (16) The first hearing in Estes looked like a presidential press conference. Estes was ultimately convicted and a Texas appellate court affirmed his conviction. (17) He then argued to the United States Supreme Court that his right to Due Process had been violated; specifically, that he was deprived of a fair trial by the influence of the media's presence. (18)
The Court reversed, deciding 5-4 that if the media is allowed in a courtroom to cover and observe a notorious trial such as Estes's, it negatively affects everyone involved in that trial. (19) Cameras, the Court said, make witnesses and judges vulnerable to grand standing. (20) Moreover, the jurors get the wrong idea right off the bat; they believe they must be involved in a special case. (21) The Court painted a picture of Estes's trial seemed to threaten the idea of trial as a fair, impartial judicial proceeding, stating:
[T]he courtroom was a mass of wires, television cameras, microphones and photographers. The petitioner, the panel of prospective jurors, who were sworn the second day, the witnesses and the lawyers were all exposed to this untoward situation. The judge decided that the trial proceedings would be telecast. He announced no restrictions at the time. This emphasized the notorious nature of the coming trial, increased the intensity of the publicity on the petitioner and together with the subsequent televising of the trial beginning 30 days later inherently prevented a sober search for the truth. (22) The Court produced four decisions insinuating that it would be constitutional to exclude media and television in the courtroom--period. (23) Justice Harlan, the critical fifth vote, was not willing to go quite so far. (24) He recognized that there may come a time when the landscape would change and technological developments would open courtroom doors to more than what the justices imagined at the time of their decision in Estes. (25) The pervasiveness of television media and its likelihood to become an everyday part of American life, he noted, could negate the fear that televising a trial would create potential for grandstanding: Finally, we should not be deterred from making the constitutional judgment which this case demands by the prospect that the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. If and when that day arrives the constitutional judgment called for now would of course be subject to re-examination in accordance with the traditional workings of the Due Process Clause. At the present juncture I can only conclude that televised trials, at least in cases like this one, possess such capabilities for interfering with the even course of the judicial process that they are constitutionally banned. (26)
But Justice Clark left this probable issue for another day, and evidenced by the apprehensive language of his majority opinion, the underlying fear of the media was laid down solidly in Estes. (27) However, even Justice Clark recognized that technological advances in reporting that limit disruption or influence could warrant reconsideration of who should be permitted to observe court proceedings and what tools they may carry into court. (28) Justice Clark noted that the "news reporter is not permitted to bring his typewriter or printing press [into a courtroom]. When the advances in these arts permit reporting by printing press or by television without their present hazards to a fair trial we will have another case." (29) Much has changed since Estes and, over time, the trial system has inched closer and closer toward the unavoidable immersion of media that Justice Harlan keenly predicted. (30)
THE MEDIA'S RIGHT TO THE COURTROOM
At stake in the 1980 case of Richmond Newspapers v. Virginia (31) was not the right of the defendant to fend off the media but, rather, the right of the media to enter a courtroom and report on a trial. (32) Richmond Newspapers wanted to observe and report on a sensational murder trial, (33) but the lawyers successfully persuaded the judge to exclude the media. Ultimately, the United States Supreme Court agreed with Richmond Newspapers's argument that it had a First Amendment right to be present at the trial. (34)
The Court held that for a trial to be impartial it must be open to the media so that the public can rest assured that nothing fishy happens. (35) In his majority opinion, Chief Justice Burger distinguished the case from Gannett Co. v. DePasquale, (36) in which the Court decided on the issue of the public's right to access courts for pretrial hearings, rather than trials. (37) The Court recognized that there existed alternative ways to avoid media bias in terms of precluding media from observing trials, such as sequestering or excluding witnesses from trial and sequestering the jury. (38) Richmond Newspapers signaled a shift in the way the Court thought of media and law. As far as transparency in the judicial system was concerned, things were looking up.
THE EXPERIMENTAL PHASE
Richmond Newspapers was followed by the 1981 case of Chandler v. Florida, (39) where the Court seemingly departed (the majority opinion does not acknowledge this departure) from its rule in Estes that media in the courtroom was per se unconstitutional and held that the states could experiment with allowing the media into their courtrooms. (40) As a result, a period ensued in which judges and courts began to experiment with opening their courtrooms to media. (41) Soon, the prohibition of cameras in the courtrooms could only be found in the federal courts and in ten states. (42)
This experimental phase came to a crashing halt with two huge cases in media history.
The first is the case of Rodney King, or People v. Powell and United States v. Koon. (43) These were the first of the cases in which new media, in the hands of citizens, was offered as evidence in the trial of a sensational case against police. An onlooker recorded the beating of Rodney King by a team of Los Angeles police led by Sergeant Stacey Koon. (44) Under his direction, the officers beat King with multiple blows from their batons while subduing and arresting him. (45)
The country saw this video before the trial ever began and was outraged by the beating. At trial, excellent...