Chapter 9

The Media and the Courts – Preserving Public Trials and Preventing Prejudice 

“We note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused… The cure lies in those remedial measures that will prevent the prejudice at its inception.” – U.S. Supreme Court Justice Tom Clark 

Although the media have a First Amendment right to publish information from within court, Pretoria publicity may undermine the defendant’s Sixth Amendment right to a fair trial. A fair trial requires impartial jurors and an impartial judge. Media exposure may cause potential jurors to form fixed ideas about the guilt or innocence of the defendant before a trial begins. The court encourages judges to use a variety of narrowly tailored measures to preserve the fairness of criminal trials. These measures:

  1. Continuance — postponement of a trial to a later time
  2. Change of the venue/location of the trial to avoid areas permeated by media coverage
  3. Sequestration — isolation of the jury from the public 
  4. Extensive Voir Dire — questioning to identify juror prejudice 
  5. Gag orders — no legal term which limits participant discussion of the case outside of the courtroom 
  6. Protection of potential witnesses from outside influences
  7. Admonition — instructions from the judge to the jury to avoid prejudicial influences/communications and to set aside any preconceptions they may have 
  8. Retrial if the jury or the judicial process phas been contaminated by media coverage
  9. Limitations on press attendance, through measures such as pool reporting, to reduce the impact of their presence on jurors and witnesses

Judges rarely postpone or relocate a trial or order a retrial. When a court needs to select a jury for a trial, the clerk of court chooses names at random from a list, such as adult licensed drivers or registered voters, in the county where the trial will be held. Potential jurors receive Summons is a notice asking an individual to appear at a court. Court processes are presumed to be open if 1) the proceeeding in question has a largely uninterrupted history of openness and 2) openness contributes to the proper functioning of the proceeding itself. There is a Press-Enterprise test for court closure; an individual seeking to close open court records or proceedings, including retrial hearings, must provide 1) specific, on-the-record findings that there is a “substantial probability” that openness will jeopardize the defendant’s right to a fair trial and 2) convincing evidence that closure is “essential” to preserve the trial’s fairness. 

Overall, the First Amendment and common law provide a public right to attend criminal trials and many trial proceedings. Court restraining orders that limit trial particpants’ extrajudicial discussion of trials generally are constitutional if a substantial likelihood exists that publicity would harm the fair trial.  Direct gags on the media rarely are constitutional. Trial aboservers may challenge the closure of court sessions. The Supreme Court has ruled that cameras ar snot inherently prejudicial to fair trials. Judges in many courts have discretion to permit cameras and other electronic technologies to cover court proceedings. Electronic access to courts varies widely based on court rules and policies established at both the federal and state levels. Most courts allow some electronic coverage, but federal trial courts generally are closed to cameras. State Bench-Bar-Press Guidelines establish appropriate limits to media coverage of courts and to trial participants’ interactions with the media. Some media organizations choose not to endorse the guidelines out of fear that courts will attempt to enforce them as binding contracts. The U.S. Supreme Court long has recognized a common law right of public access to court records. This right is not unlimited and is shaped by the access rules in each court jurisdiction. State constitutions, public records laws and court rules vary widely. Although most records presented in court are presumptively open, they may not remain open permanently. National security concerns and state secrets privilege sometimes close court records. 

“The media have no right of access to court records beyond that of the public.”


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