Free Press and Fair Trial

Two cherished U.S. traditions guaranteed by the Bill of Rights are a free press and the right to a fair trial. Although independent media coverage can, and often does, enhance public oversight of the administration of justice, untrammeled reporting of information by the news media prior to and during criminal trials has the potential to undermine the integrity of the proceedings as well as the Sixth Amendment right to a “speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”

Courts have struggled to reconcile the competing constitutional rights implicated by robust news reporting about criminal cases. The Supreme Court has made clear that neither the Sixth nor the First Amendment invariably prevails in a clash between these two competing values. At best, trial courts must strike an uneasy balance in an attempt to further the public interest.

Although the perceived conflict between a criminal defendant's right to a fair trial and the public's right to know has been exacerbated since the advent of electronic communication, the issues raised by media coverage of crimes are not new. For example, at the beginning of the nineteenth century, when Aaron Burr was facing charges of treason, Chief Justice John Marshall ruled that despite the pervasive publicity that had surrounded his arrest and indictment, Burr could still be assured of a fair trial as long as the jurors could base their decisions solely on the evidence presented in the courtroom (United States v. Burr, 25 Fed. Cas. 49, No. 14692G [1807]).

It was not until the 1960s that the Supreme Court specifically ruled that media coverage of criminal defendants' confessions by the news media had resulted in such “deep and bitter prejudice” that the accused's rights to a fair trial had been violated, necessitating the reversal of their convictions and new trials (Irvin v. Dowd, 366 U.S. 717 [1971]; Rideau v. Louisiana, 373 U.S. 723 [1963]). In 1966, the Court went further, excoriating a trial judge for failing to control the “carnival atmosphere” in the courtroom during a high-profile murder trial, as well as neglecting his responsibility to restrict media reports of information deemed prejudicial to the defense during the course of the trial. Although acknowledging that the news media were free to report what transpired in the courtroom, the high court made clear that the trial judge must take appropriate steps to protect the defendant's Sixth Amendment rights, including such options as instructing lawyers, witnesses, and government officials not to talk to the press; postponing the case until the publicity died down; transferring the case to another location; or sequestering the jury to prevent their exposure to information that would not be admissible at trial (Sheppard v. Maxwell, 384 U.S. 333 [1966]).

In the wake of Sheppard, the American Bar Association convened the “Reardon Committee” to propose a set of principles designed to govern conduct for attorneys to minimize the potential for prejudicing a defendant's Sixth Amendment rights. These served as a model for voluntary bench-bar-press guidelines for coverage of criminal cases that were adopted in many states.

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