Free Press Vs. Fair Trials

Examining Publicity's Role in Trial Outcomes

Jon Bruschke, William Earl Loges

• Publisher: Routledge
• Year: 2003
• eBook ISBN: 9781135630782
• Topic: Languages & Linguistics
• Subtopic: Communication Studies
• Index: Languages & Linguistics

Current research on media and the law has generally been atheoretical and contradictory. This volume explains why pretrial publicity is unlikely to affect the outcome of most jury trials, despite many experimental studies claiming to show the influence of publicity. It reviews existing literature on the topic and includes results from the authors' own research in an effort to answer four questions:

*Does pretrial publicity bias the outcome of trials?

*If it has an effect, under what conditions does this effect emerge?

*What remedies should courts apply in situations where pretrial publicity may have an effect?

*How does pretrial publicity relate to broader questions of justice?


Reporting research based on actual trial outcomes rather than on artificial laboratory studies, Free Press vs. Fair Trials examines publicity in the context of the whole judicial system and media system. After a thorough review of research into pretrial publicity, the authors argue that the criminal justice system's remedies are likely to be effective in most cases and that there are much larger obstacles confronting defendants than publicity.


This book presents the first extensive study of the influence of pretrial publicity on actual criminal trials, with results that challenge years of experimental research and call for more sophisticated study of the intersection of media and criminal justice. It is required reading for scholars in media law, media effects, legal communication, criminal justice, and related areas.

CHAPTER ONE

Introduction

The media circus that appears at so many trials these days needs a ringmaster to balance the rights of the media and the accused. It does not need more clowns. (Walton, 1998, p. 588)

There are many aspects to pretrial publicity that make it fun to think about, not the least of which is the maze of overlapping attentions and interwoven interests that it seems to conjure. Lawyers decry pretrial publicity while simultaneously raising their own career stock (and hourly fee) by accumulating more if it. As much as they complain, lawyers sometimes have an interest in cultivating publicity (Imrich, Mullin, & Linz, 1995; Shapiro, 1994). The media both perpetrate and comment on the frenzy—newspapers and television stations generate the publicity in the first place and then actively comment on the likely effect that the coverage will have on the trial. Litigants endure more and more egregious privacy intrusions and indignities and then cash royalty checks from what are increasingly lucrative book contracts that tell their story. Many litigants have, ironically enough, taken the route of appearing on televised talk shows to lament media interest in their legal cases. The landscape is bizarre indeed.

But at least it is not new. Concerns that pretrial publicity might interfere with the verdicts of judicial proceedings extend back to the earliest days of this country. In Aaron Burr’s 1807 treason trial the Federalist Gazette and Daily Advertiser staunchly and voluminously supported the defense, while the Jeffersonian National Intelligencer defended the prosecution with equal vigor. When in 1850 dismembered parts of George Parkman showed up in the laboratory of Harvard professor John W. Webster the “penny papers” gave elaborate coverage which “probably set the record for the period” (Lofton, 1966). In 1801 Fisher Ames was openly decrying the “sort of rivalship among printers, who shall have the most wonders, and the strangest and most wonderful crimes” (cited in Lofton, 1966). Our own century has witnessed the Sacco–Vanzetti trial, the Scopes case, Hauptmann’s defense in the Lindberg prosecution, Leopold and Loeb’s conviction, and the Hiss trial. Events seemed to culminate in the Sam Sheppard case; the U.S. Supreme Court remanded the Sheppard conviction on the grounds that pretrial publicity had precluded the possibility of a fair trial (Sheppard v. Maxwell, 1966). A Special Committee of the Association of the Bar of the City of New York issued a special study published in two parts that was “intended for use in all parts of the United States” and whose materials demonstrated a “need of prompt remedial action” (Medina, 1967, pp. vii–viii). The Special Committee concluded that after Sheppard “there is steady progress in the right direction, with occasional setbacks” (p. x).

Whatever journalistic restraint the Special Committee was able to find in 1966 must have completely evaporated by O. J. Simpson’s trial in 1994. Not only was the Simpson trial the most heavily covered legal case of all time, it may have been the most widely covered media event ever. And Simpson distinguished himself with an accomplishment that Hauptmann, Scopes, Eugene Debs, Sheppard, and even Socrates could not attain: He was acquitted. Other notable figures who earned key legal victories in the 1990s were Lorena Bobbitt, the Los Angeles Police Department officers accused of beating Rodney King, Puffy Combs (later remonikered “P. Diddy”), and even the Menendez brothers (at least at their first trial). High-profile acquittals in the 1970s included Angela Davis, John Connally, and John Mitchell (Simon, 1977). There is almost an impression that some press agent declared to these new (and newly made) celebrities that “there is no such thing as bad publicity” and they collectively discovered that the best way to get free press was to stage an enormous media trial. Against this backdrop and amidst the din of popular commentary, it is safe to say that academic research has its own role, which, if not quite as popular, sexy, and entertaining, is at least really important.

Pretrial publicity spurs interest in many different parts of the academy but is mastered by none. Those in the law school have an obvious concern about the topic, and books on matters concerning free speech and fair trials cover rows and rows of the law library. Also with an obvious stake in the issue are the scholars of media, who fill an equal number of shelves with books talking about media effects. Social scientists of all stripes have conducted studies trying to isolate and define a pretrial publicity effect, and those who have conducted empirical research cover the range from psychologists to sociologists to communication scholars who would distinguish their work from that of their media colleagues. The field that has taken to the study of pretrial publicity most prominently seems to be psychology—21 of the 23 laboratory studies reviewed later have either been published in psychology journals or written by psychologists—and that fact has undoubtedly contributed to a tendency for research to focus on how messages might be processed. One can easily imagine other fields focusing on other areas, such as how media are attended to (as communication scholars might explore) or how media interact with the broader body politic (as sociologists might be interested in). There is certainly an advantage to bringing so many different perspectives to bear on a topic. Insights common to one field but rare to another are likely to be overlooked simply due to unfamiliarity with the concepts common to a different set of journals and organizations. But there are also difficulties associated with attention from so diverse a group of intellectuals. Often, the research can be based on assumptions so different that conclusions are difficult to compare, and the depth that is usually associated with a single field’s focus on a topic (think of the work psychologists have done on intelligence) is not evident for pretrial publicity. This book tries to bring together the research conducted in different fields with different theories with the hope that it is possible to make some consistent conclusions. The strengths of some research efforts fill in the blind spots of others, and the space afforded by journal articles rarely allows a comprehensive integration of all that is out there.

The list of questions raised by pretrial publicity is a long one. Does pretrial publicity bias the outcomes of trials? It does seem like the answer to this question would have to be “yes” to justify all the fuss, but it turns out that the answer is anything but straightforward. If pretrial publicity does bias the outcome of trials, what sort of pretrial publicity is damaging? Is it all bad, or are some sorts worse than others? Anyone trying to come up with a remedy would obviously benefit from knowing whether there are particular types of publicity that should be protected against. Nonetheless, it will take a lot of sorting through the research to try to find a pattern to publicity effects that has much to do with content. If there is a pretrial publicity effect, what should be done about it? Will juries simply ignore publicity if they are asked to do so? Is it enough to look for jurors who haven’t heard anything about the trial? Finally, there are some basic issues raised about what a fair trial means. What is to be done if pretrial publicity actually helps defendants? If remedies are expensive (it’s no leap to say that changing venue costs a pile of money) and pretrial publicity only makes a difference in certain instances, can we apply remedies only in the close cases, or should all defendants have all remedies available to them?

This chapter gives a basic overview of these issues and sacrifices depth for perspective. It reviews some basic facts and the issues typically raised in a trial with pretrial publicity. Taking a big step back, it reviews broad patterns found in academic research, and quickly glances at extant legal doctrine. Finally, it gives an overview of the theoretical orientation of the book. This quick review ought to provide a sense of the breadth of the issues invoked and an orientation to the work done to date; the simple questions raised turn out to have complicated answers.

THE BASIC ISSUES

The importance of pretrial publicity can be measured in both its meaning and its frequency. Some have described pretrial publicity as “one of the most pressing problems facing society” (Sue, Smith, & Pedroza, 1975), and base the claim on both its legal importance and the manner in which this particular legal issue relates to the broader public. It is well established that Sixth Amendment rights to a fair trial can come into conflict with First Amendment rights of a free press (Jones, 1991; Kerr, 1994; Kramer, Kerr, & Carroll, 1990; Rollings & Blascovich, 1977), and those conflicts are certainly evident in highly publicized trials. On the one hand, there is the danger that courts will overcorrect for defendant rights at the expense of legitimate First Amendment interests (Constantini & King, 1980–1981; Kramer et al., 1990; Newsom, 2000) and the body politic will suffer from the absence of a free flow of information. On the other hand, courts may fail to protect defendant rights and innocent defendants may be convicted due to unfair publicity rather than evidence at trial. Naturally occurring coverage is almost universally antidefendant (Carroll et al., 1986; Imrich et al., 1995; Kramer et al., 1990; Kovera, 2002; Moran & Cutler, 1991; Nietzel & Dillehay, 1983; Ogloff & Vidmar, 1994; Riley, 1973; Studebaker, Robbennolt, Pathak-Sharma, & Penrod, 2000; Tankard, Middleton, & Rimmer, 1979). Prodefendant coverage, to such an extent that the concept can be said to exist at all (see Bruschke & Loges, 1999; Strauss 1998), occurs in less than 6% of coverage (Nietzel & Dillehay, 1983) or less than 0.1% of all criminal trials. Based only on what is being said about them, criminal defendants have good reason to dislike excessive pretrial publicity. Regardless of whether First Amendment or Sixth Amendment rights are the more threatened, publicized cases involve a number of complexities and perils. These range from “protracted selection of jurors, to various motions which in turn create more delays, to greater costs, to mistrials with additional burdens in the already congested court calendars, and possibly to public loss of confidence and alienation from the legal system” (Padawer-Singer & Barton, 1975, p. 126). The issue of pretrial publicity is a deserving one if only because of the weight of the issues at stake.

This need to balance interests has resulted in attempts to regulate publicity outside the courtroom and to correct for it once it works its way inside the courtroom. Outside the courtroom, there have been attempts by professional organizations to regulate publicity. The American Bar Association developed “Standards” in 1968 and “Model Rules” in 1983 that were intended to regulate the behavior of the bar and the press (Imrich et al., 1995), but they are rarely enforced (Kramer et al., 1990) and routinely violated (Frasca, 1998; Imrich et al., 1995; Tankard et al., 1979). Inside the courtroom walls there is an identifiable number of cases where courts have thrown out convictions due to extensive pretrial publicity (Constantini & King, 1980–1981; Imrich et al., 1995; Kline & Jess, 1966; Simon, 1966), although one survey found that fewer than 100 of 250,000 criminal convictions get overturned due to coverage concerns (Spencer, 1982).

Pretrial publicity is also important because of the simple frequency of its occurrence. From the tabloid shows like LA Cops and America’s Most Dangerous Car Chases to the more erudite American Justice and the omnipresent Court TV, broadcasters are finding that crime coverage is one way to stay afloat in a competitive viewing market. Despite the seeming prevalence of media focus, pretrial publicity does not occur in a large proportion of cases (Hough, 1970), and one review concludes that only 5% of felony arrests receive coverage (Frasca, 1988). Relying on Frasca’s work, one estimate has calculated that 12,000 defendants a year face extensive pretrial publicity (Kerr, 1994). Two caveats are in order. First, there is some difficulty in defining what constitutes “extensive” publicity (a point developed in later chapters), and this factor may make it difficult to place full confidence in this estimate. Second, coverage is not distributed equally across those cases that receive it and there can be little doubt that some cases attract more attention than others. One study of felony murder cases, for example, found coverage in only 18.6% of federal murder and robbery trials (Bruschke & Loges, 1999). Surette (1992) contends that when media coverage of a trial hits a certain saturation point the trial becomes a media event unto itself and takes on a dramatic quality akin to a miniseries. The line between information and entertainment blurs, even more than it does in whatever counts for normal coverage. Those trials that, for whatever reason, become the focus of media attention take on an importance simply because of how they can hold popular interest and possibly shape public opinion.

In the end, two things about the frequency of pretrial publicity are striking. First, pretrial publicity occurs in a proportionately tiny number of cases, and thus concerns over the incidence of publicity derive from the total number of cases affected (a respectable 12,000 a year) rather than the percentage of cases involved (no more than 20% and probably somewhere between 1% and 5%). Second, media attention is not distributed evenly across publicized cases, and even among the cases that the media do cover a few cases get a disproportionate amount of attention.

CURRENT LEGAL DOCTRINE

Courts are charged with balancing the interests of the defendant and the state, and have held that excessive publicity can be grounds for appeal based on the assumption that publicity can create an unfair situation for the defendant that the courts have an obligation to remedy effectively. Judicial concern over the Sam Sheppard case produced a ruling in the Supreme Court’s landmark Sheppard v. Maxwell decision (1966). The case served as a starting place for legal doctrine to sort out when pretrial publicity is sufficiently onerous to justify a remedy and what the remedy ought to be. Roughly three decades after Sheppard the progress has been halting, and at least one review characterized the case law as “conflicting” (Kramer et al., 1990). Some commentators have simply listed cases where publicity has been found to be damaging next to cases where it has not (Nietzel & Dillehay, 1983), whereas others have concluded that case law conflicts (Kramer et al., 1990; Surette, 1992). Judicial definitions of what constitutes prejudice are based on “vague” notions of bias (Rollings & Blascovich, 1977) that are “circular” and slippery (Moran & Cutler, 1991). Others have called the case law inconsistent over time and liken its application to a “shell game” (Walton, 1998).

By and large, judicial standards have been developed outside of social science understandings of human behavior or have openly rejected social science findings (Moran & Cutler, 1991; Ogloff, 2002; Rollings & Blascovich, 1977). In part, this may be due simply to judicial ignorance of social science research or open judicial hostility to introducing social science into legal proceedings at all. Indeed, the way that social science research interfaces with legal practice is a complicated issue that has caught the attention of other scholars as an area of study in its own right (Lindman, 1989; Melton, 1987). Apart from judicial ignorance, however, questions about the realism of current pretrial publicity studies (reviewed below) have caused the legal community to turn away from social science research as a source of information on which to base decisions (Bornstein, 1999; Carroll et al., 1986; Davis, 1986; Jones, 1991; Padawer-Singer & Barton, 1975; Padawer-Singer, Singer, & Singer, 1977; Pember, 1990; Studebaker et al., 2002). Some commentators conclude that there is a fundamental incompatibility between the methods, goals, and terms used in social science and those used in jurisprudence, taking the view that “from a legal perspective, it is impossible to operationalize a uniform methodology for the determination of prejudice” (Moran & Cutler, 1991, p. 346). Others take a gentler view: “Change of venue surveys allow for the delicate intersection of two worlds: Social science research and the legal system. Each world has its own traditions and standards, and attempts to merge them lead to a somewhat imperfect fit” (Posey & Dahl, 2002, p. 124). For whatever reason, there is little correspondence between current legal definitions and rules about the problem and current social science findings. To the extent that courts rely on social science at all, they will examine specific opinion surveys in particular cases to determine community bias (e.g., McConahay, Mullin, & Frederick, 1977; Nietzel & Dillehay, 1983; Posey & Dahl, 2002; Vidmar & Melnitzer, 1984), even though a number of scholars have made a strong case for linking empirical findings to judicial practice (Carroll et al., 1986; Lindman, 1989; Ogloff, 2002; Riley, 1973; Studebaker & Penrod, 1997; Vidmar & Judson, 1981).

It may seem strange for a book devoted to pretrial publicity to jump so swiftly past the extant case law, and the maneuver requires some explanation. The perspective this book takes is that legal doctrine should follow from empirical knowledge (see Ogloff, 2002), and its purpose is normative and not descriptive. Although there can be much discussion about the appropriate role of social science in the courtroom, there is little doubt that pretrial publicity questions turn on empirical knowledge. Whether or not pretrial publicity can create a state of mind for jurors that can’t be overcome by judicial instructions and trial evidence is not a legal question, but an empirical one (Simon, 1977). Thus, a review of case law is in large measure a digression into the absurd: Case law can only develop validly if it is based on a sound understanding of empirical relationships identified by social science. Because social science hasn’t produced much clear knowledge about the crucial empirical relationships (a point developed at length a little later on), it is more or less impossible for case law to do its job. At present, it seems that case law is not precise or well developed, and that may simply be an accurate reflection of the knowledge available to legal decision makers. Whether or not judges should be paying more attention to social science research is at this juncture a moot point: Social science hasn’t had much to offer. The ideal situation, of course, is one where social science has produced a clear set of findings and judicial officers incorporate those findings into a coherent set of rules.

SOCIAL SCIENCE

Subsequent chapters develop in depth the findings of social science research. At this point, one overarching pattern bears mention. In a nutshell, laboratory studies have found that pretrial publicity (PTP) has an effect, but those results do not replicate in field research. This is a new viewpoint and one not shared by current reviews and one that may be due to the relative paucity of field research (Studebaker et al., 2000; Vidmar, 2002). In 1997, Studebaker and Penrod synthesized the research findings this way: “In sum, it appears that the effects of pretrial publicity can find their way into the courtroom, can survive the jury selection process, can survive the presentation of trial evidence, can endure the limiting effects of judicial instructions, and cannot only persevere through deliberations, but may actually intensify” (p. 445). Steblay, Besirevic, Fulero, and Jiminez-Lorente (1999) came to a very similar conclusion 2 years later at the conclusion of a meta-analysis:

The data support the hypothesis that negative pretrial publicity significantly affects jurors’ decisions about the culpability of the defendant. Jurors exposed to publicity which presents negative information about the defendant and crime are more likely to judge the defendant as guilty than are jurors exposed to limited PTP.… Initial observation of the dataset showed mixed results as to the effect of PTP. It appears now with closer analysis that some of the nonsupportive results may simply have been due to lack of statistical power. (p. 229)

Both sets of reviewers believed that their conclusions extend from the laboratory to the field. Steblay et al. wrote: “From a legal and policy perspective, the important question now is what might be done to safeguard the rights of a defendant in a case where documented negative PTP appears to be a significant problem” (p. 230). This appears to be the advice that social scientists are giving the legal system. Fulero (2002) published an affidavit that he submitted to the court in a local murder case, and noted that it was similar to the affidavit Penrod submitted in McVeigh. The affidavit began with the conclusion that pretrial publicity can bias the outcome of a trial, noted that voir dire, jury instructions, and continuance all failed as remedies, and concluded that a change of venue or change of jurors was the only remedy likely to be effective.

These conclusions are hasty. Although the work of Steblay et al. in particular is a rigorous summary of laboratory research, the discovery of a consistent pattern of findings hidden beneath low power and small sample sizes is not the same as demonstrating that laboratory research replicates in actual practice. No study reviewed by either Steblay et al. or Studebaker and Penrod observed actual trials and compared highly publicized and less publicized cases, which is the data necessary to demonstrate the point. Kerr wrote in 1994:

The empirical question is whether such prejudice survives the remedies the court applies. The most direct way to examine this question would be to associate the occurrence of pretrial publicity with actual jury verdicts—is the conviction rate higher in cases receiving prejudicial pretrial publicity? There have been a few isolated attempts to do this. The problem with such investigations is that they fail to examine a matched sample of cases without pretrial publicity. Without such data it is not possible to establish whether there is an association between the amount or type of pretrial publicity and the jury verdict. Apparently, no one has yet collected the appropriate data to answer this question. (p. 121)

The data Kerr asked for have since been collected and published in 1999, after either Steblay et al. or Studebaker and Penrod had the opportunity to review the work. Bruschke and Loges (1999) found identical conviction rates between highly publicized federal first-degree murder cases and those receiving no coverage at all, and replicated the finding when reviewing a separate dataset that included both federal first-degree murder cases and federal robbery cases along with other variables (included here in chap. 3).

How is it possible that the conclusions of the reviewers could be so firm and yet the results fail to replicate in the field? Three explanations are possible. They are not exclusive, all may add insight into the mystery, and sorting them out will in large measure be the bulk of the work of the remainder of this book. First, there is the possibility that the laboratory research simply failed to adequately simulate the conditions of actual courtrooms, and the findings they obtained were thus irrelevant to actual practice. Although there is a virtually universal agreement that studies should strive to maximize realism (Jones, 1991; Kovera, 2002; Moran & Cutler, 1991; Padawer-Singer & Barton, 1975; Padawer-Singer et al., 1977; Studebaker & Penrod, 1997; Studebaker et al., 2002; Vidmar, 2002), and most agree that there are inherent limitations in laboratory studies that will always make generalizability difficult (Freedman, Martin, & Mota, 1998; Hans & Doob, 1976; Otto, Penrod, & Dexter, 1994; Rollings & Blascovich, 1977; Wilcox & McCombs, 1967), opinion divides on how research that deviates from actual courtroom experience ought to be evaluated. One camp holds that the research is totally “phony” and should be disregarded altogether (Pember, 1984). Others have expressed concern that current research deviates from realistic settings in ways that ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword
• Preface
• Chapter One
• Chapter Two
• Chapter Three
• Chapter Four
• Chapter Five
• Appendix: Detailed Discussion of City-Level Data
• References