FAIR TRIAL AND FREE PRESS - THE PRACTICAL DILEMMA

• NCJ Number: 41569
• Journal: Stanford Law Review Volume: 29 Issue: 3 Dated: (FEBRUARY 1977) Pages: 485-496
• Author(s): W H ERICKSON
• Date Published: 1977
• Length: 12 pages
• Corporate Author: Stanford University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

PART OF A SYMPOSIUM ISSUE, THIS ARTICLE ANALYZES THE U.S. SUPREME COURT DECISION IN NEBRASKA PRESS ASSOCIATION V. STUART, AND ASSESSES THE OPTIONS AVAILABLE TO A JUDGE FACED WITH PROTECTION OF THE DEFENDANT'S RIGHTS AT TRIAL.

Abstract

IN ITS 1976 DECISION IN NEBRASKA PRESS ASSOCIATION V. STUART, THE U.S. SUPREME COURT STRUCK DOWN A STATE COURT INJUNCTION AGAINST PRETRIAL PUBLICATION OF CONFESSIONS AND OTHER MATERIALS IN THE MURDER TRIAL OF ERWIN CHARLES SIMANTS, AND IN SO DOING, RAISED A NUMBER OF ISSUES IN THE CONFLICT BETWEEN FREE PRESS AND THE DEFENDANT'S RIGHT TO AN IMPARTIAL JURY. THIS COMMENT ANALYZES THE PRACTICAL CONSIDERATIONS INVOLVED IN UPHOLDING BOTH THESE RIGHTS, PARTICULARLY THOSE PROBLEMS INVOLVED IN ENSURING AN IMPARTIAL JURY AND DETERMINING THE IMPACT OF THE MEDIA ON JURORS. THE AUTHOR NOTES THAT THE COURT'S DECISION IN NEBRASKA PRESS ASSOCIATION HELD THAT THE STATE COURT HAD NOT ESTABLISHED A RECORD THAT SUPPORTS PRIOR RESTRAINT ON PUBLICATION AND ADOPTED THE CLASSIC 'BALANCE' ANALYSIS OF JUDGE LEARNED HAND, WHICH IS GUIDED BY THREE KEY AREAS OF CONSIDERATION: A) THE NATURE AND EXTENT OF PRETRIAL NEWS COVERAGE; B) WHETHER OTHER MEASURES WOULD BE LIKELY TO MITIGATE THE EFFECTS OF UNRESTRAINED PRETRIAL PUBLICITY; AND C) HOW EFFECTIVELY A RESTRAINING ORDER WOULD COOPERATE TO PREVENT THE THREATENED DANGER. IN LIGHT OF THIS, THE AUTHOR SUGGESTS SEVERAL GUIDELINES FOR THE TRIAL JUDGE CONSIDERING THE UTILITY AND CONSTITUTIONALITY OF A GAG ORDER. FINALLY, THIS COMMENT SUGGESTS THAT THE APPROPRIATE CONSTRUCTION OF NEBRASKA PRESS ASSOCIATION IS A NARROW ONE, AND THAT THE DECISION SHOULD NOT DISCOURAGE TRIAL COURTS FROM EXPLORING THE UTILITY AND CONSTITUTIONALITY OF CAREFULLY REFINED PRIOR RESTRAINT OR GAG ORDERS WHEN IT IS MANIFEST THAT THE RIGHT TO TRIAL BY AN IMPARTIAL JURY IS AT STAKE. FOR THE OTHER SYMPOSIUM ARTICLES, SEE NCJ-41564 TO NCJ-41574. (AUTHOR ABSTRACT MODIFIED)...DMC