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Jury's Pre-Trial Knowledge in Historical Perspective - The Distinction Between Pre-Trial Information and 'Prejudicial' Publicity

NCJ Number
Law and Contemporary Problems Volume: 43 Issue: 4 Dated: (Autumn 1980) Pages: 155-168
J M Hassett
Date Published
12 pages
A distinction should be made between an informed juror and a biased juror, according to this review of pretrial publicity in court cases from 13th century England to Watergate.
Jury selection is based on the 6th amendment right to trial by an impartial jury. The idea that ignorance of public affairs is an attribute of a good juror has been dealt a heavy blow by the U.S. Court of Appeals decision affirming the convictions in the Watergate coverup. However, the court's continuing concern that it should monitor the jury's sources of knowledge about the case kept open the possibility of a dangerous judicial review of the fairness of journalistic stories. In fact, the origins and history of the jury are at odds with the idea that a juror should not have extrajudicial knowledge about the events at issue in a trial. For example, judges decided in 1280 that Florentine merchants living in London should be summoned when an issue arose about an act in Florence. This ancient right of the jury to rely on its own knowledge of the facts is the source of the jury's independence. The right was upheld as late as 1834 by a South Carolina court ruling that the jury may act in part on its own knowledge of the parties and their witnesses. Today jurors who are also witnesses must be sworn as witnesses, although this requirement developed independently of the issue of impartiality. This principle is now almost a necessary consequence of the hearsay rule. Examination of the Watergate case further supports the argument that judicial inquiry should focus on the juror's openmindedness and not on the quality of the publicity. Footnotes containing references are included.