Prejudicial Publicity in Criminal Trials: Bringing Sheppard v. Maxwell Into the Nineties

• NCJ Number: 150749
• Journal: New England Law Review Volume: 27 Issue: 3 Dated: (Spring 1993) Pages: 857- 882
• Author(s): J F Flynn
• Date Published: 1993
• Length: 26 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article discusses the state of the law regarding publicity and its effect on a fair trial, with Sheppard v. Maxwell (1966) used as the lead case.

Abstract

In Sheppard v. Maxwell, the U.S. Supreme Court held that publicity that is massive and pervasive could inherently prejudice a defendant's sixth amendment rights to a fair trial. Courts use various remedial measures in an attempt to negate the effects of negative publicity. The effectiveness of these measures -- voir dire, continuance, sequestration, and change of venue -- have been questioned both in their logistics and effect. Much of the controversy surrounding the attempts to find impartial jurors involves the premise that a person must be uninformed in order to be impartial. Many commentators, however, feel that this is not the case, and that we need to put more faith in the people selected as jurors. Although pretrial publicity is a problem, there is some sentiment that the problem is exaggerated. Further complicating the issue of pretrial publicity is the first amendment right of freedom of the press. Often the first amendment and the sixth amendment clash in the context of pretrial publicity. Courts are reluctant to limit the rights of the press and will only do so when the "Sheppard" remedial measures have been exhausted and proven ineffective. Some restraint may be allowed in the form of barring the press from pretrial conferences if, in balancing the rights provided by the first and sixth amendments, the furtherance of justice dictates their removal. The most appropriate judicial control over the publishing of information is a "gag order" directed not at the press, but at the public officials, witnesses, and attorneys involved in the trial. Defendants concerned over the amount of publicity their cases attract should avail themselves of the remedial measures, however flawed, available to them. Defendants who have been acquitted despite extensive media coverage lend credence to the theory that publicity does not have a strong effect on jurors, except in extremely high-profile cases, and that the results may be the same in the absence of publicity. 252 footnotes