NCJ Number
48259
Journal
SYRACUSE LAW REVIEW, 28 Issue: 4 Dated: (FALL 1977) Pages: 875-921
Date Published
1977
Length
47 pages
Annotation
CONFLICTS REGARDING A DEFENDANT'S RIGHT TO BE TRIED BY AN IMPARTIAL JURY AND THE RIGHTS OF THE PRESS AND THE PUBLIC TO ATTEND PRETRIAL PROCEEDINGS ARE ANALYZED.
Abstract
IN SENSATIONAL CRIMINAL CASES, OFTEN THERE IS A DANGER THAT PRETRIAL PUBLICITY WILL JEOPARDIZE THE DEFENDANT'S CONSTITUTIONAL RIGHT TO BE TRIED BY AN IMPARTIAL JURY. PUBLIC PRETRIAL HEARINGS ARE AMONG THE MAJOR SOURCES OF PRETRIAL PUBLICITY, BECAUSE THEY INEVITABLY DEAL WITH MATTERS PREJUDICIAL TO THE ACCUSED. TO COUNTER PRETRIAL PUBLICITY, TRIAL JUDGES SOMETIMES MOVE THE PLACE OF TRIAL, POSTPONE THE TRIAL UNTIL THE EFFECTS OF THE PUBLICITY DIMINISH, OR INTENSIFY EXAMINATION OF PROSPECTIVE JURORS. THE DISCRETION OF JUDGES IN FASHIONING REMEDIES FOR PRETRIAL PUBLICITY HAS BEEN LIMITED BY A SUPREME COURT HOLDING THAT A GAG ORDER FORBIDDING PUBLICATION OF INFLAMMATORY INFORMATION BY THE PRESS VIOLATES THE FIRST AMENDMENT. AS A RESULT OF THIS HOLDING, MANY JUDGES HAVE RESORTED TO EXCLUDING THE PUBLIC AND PRESS FROM PRETRIAL CRIMINAL PROCEEDINGS. IN SEVERAL CASES, NEWS REPORTERS HAVE SUED TO OBTAIN ADMISSION TO PRETRIAL PROCEEDINGS, AND A NUMBER OF APPELLATE COURTS HAVE AGREED WITH THE PRESS THAT EXCLUSION ORDERS ARE NOT TOLERABLE. OTHER AUTHORITIES, INCLUDING THE AMERICAN BAR ASSOCIATION, HAVE ENDORSED THE USE OF PRETRIAL EXCLUSION ORDERS TO ENSURE THAT DEFENDANTS RECEIVE A FAIR TRIAL. THE SUPREME COURT HAS SKIRTED THE ISSUE OF EXCLUSION ORDERS. ANALYSIS OF FIRST AND SIXTH AMENDMENT ARGUMENTS FOR ACCESS TO PRETRIAL HEARINGS LEADS TO THE CONCLUSION THAT THERE ARE SERIOUS IMPEDIMENTS TO A CONSTITUTIONAL ATTACK ON PRETRIAL EXCLUSION ORDERS. HOWEVER, THE OVERRIDING POLICY THAT CRIMINAL JUSTICE BE ADMINISTERED OPENLY DEMANDS THAT EXCLUSION ORDERS BE EMPLOYED ONLY WHEN ALTERNATIVE MEASURES SHORT OF GAG ORDERS WOULD BE INADEQUATE TO GUARANTEE A FAIR TRIAL. (AUTHOR ABSTRACT MODIFIED--LKM)