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Full text of "Free press and fair trial : the role of behavioral research"

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WORKING PAPER 
ALFRED P. SLOAN SCHOOL OF MANAGEMENT 



FREE PRESS AND FAIR TRIAL: 
THE ROLE OF BEHAVIORAL RESEARCH 

John S. Carroll, et al 
Sloan School of Management, M. I. T. 



October 29, 1984 



WP# 1604-84 



MASSACHUSETTS 

INSTITUTE OF TECHNOLOGY 

50 MEMORIAL DRIVE 

CAMBRIDGE, MASSACHUSETTS 02139 



FREE PRESS AND FAIR TRIAL: 
THE ROLE OF BEHAVIORAL RESEARCH 

John S. Carroll, et al 
Sloan School of Management, M. I. T. 

October 29, 1984 WP# 1604-84 



Free Press and Fair Trial: 
The Role o-f Behavioral Research 



John S. Carroll, Sloan School, M. I. T. 
Norbert L. Kerr, Michigan State University 
James J. Al-fini, American Judicature Society- 
Frances M. Weaver, Loyola University o-f Chicago 
Robert J. hacCoun, Michigan State University 
Valerie Feldrr.an, Loyola University o-f Chicago 



Support -for this research was provided by The Poynter Institute 
(formerly the Modern Media Institute). We extend our 
appreciation to Robert Haiman and the advisory panel of Griffin 
Bell, Clayton Kirkpatrick, John Heinz, Thomas P. Sullivan, Talbot 
D'Alembert, and Richard Gray. We also appreciate the suggestions 
and comments of Steven D. Penrod, Michael Saks, and Hans Zeisel. 



I JAN 1 C 



i'tc.CEivcU 



ABSTRACT 

The growtr. of mas5 media has cofr.p 1 i cated the relationship betweer 
the courts and the media. Free press and fair trial rights are 
(;.ept in balance by the use o-f judicial restraints and remedies 
such as yoi^r_di_re, change o-f venue, and gag orders. During the 
1960s, legal codes and Supreme Court cases restricted the press 
to protect defendants. In the 19705, the pendulum swung back to 
uphold the rights of the press and attorneys. Current case law 
and legal codes are inconsistent and provide insufficient 
auidance to judges in their use of restraints and remedies. Nor 
is there a body of empirical research on the impact of news 
coverage and juror behavior capable of informing the courts at 
this time. In this paper, we review the legal issues involving 
free press and fair trial, and then critically assess the 
empirical social science literature. We argue that carefully- 
conducted empirical research could provide important information 
to the courts. We suggest several studies that together could 
provide legally-relevant and scienti f i cal 1 y-val i d information. 



0751 281 



Free Press and Fair Trial: 
Tne Role o-f Behavioral Research 

A controversy has long existed between implications o-f the 
First Amendment right to a -free press and the Sixth Amendment 
right to a "speedy and public trial, by an impartial jury o-f the 
State and district wherein the crime shall have been committed" 
(LI. S. Constitution). At issue is the point at which the nature 
and amount o-f news coverage surrounding a case begin to a-f-fect 
the accused's right to a fair trial. 

Although the Supreme Court of the United States has 
struggled with the issue of news coverage for close to two 

centuries (yni_ted_State5_yi Burr, 1807), it has been only in the 

past two decades that the scope of the potential problem has been 
realized. The growth of both print and electronic mass media has 
significantly complicated the issue and conseqently placed a 
heavier burden on the trial judge. Recent cases such as the Big 
Dan's rape trial in New Bedford and the DeLorean case in Los 
Angeles create massive nationwide news coverage. 

Beginning in the 1960's, the Supreme Court decided several 
major cases involving pretrial and trial publicity. The effect 
of these cases was to require judges to e;-;ercise discretion to 
prevent or remedy any biasing effects of news coverage to 
preserve the fairness of court proceedings while maintaining 
maximal access of press to the workings of the court. Judges 
have available a variety of remedial and preventive measures such 
as yoi_r_di_re, judicial admonitions to the jury, continuances, 

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r 



changes o+ venue, changes o-f venire, gag orders, anc 
sequestration of the jury. 

However, there are serious questions regardirig wnetner 
judges have sufficient guidance to use their discretion as wisels 
as possible. The available case law, ethical codes, American Ba 
Association Standards, and other commentary a^re inconsistent in 
the proposed criteria for evaluating when free press access 
constitutes a threat to a fair trial. Judges do not exhibit a 
clear consensus on the effectiveness and appropriateness of 
available reiT.edies and restraints. 

Nor have the courts found a sound empirical basis for 
incwing whether news coverage has an adverse impact on trials and 
if it does, whether appropriate judicial remedies Are sufficient 
to remove this impact. In his dissenting opinion to a case 
involving pre-trial publicity (Strgbl_e_v^_Cal_i^f grni a, 1952), 
Justice Fell;; Frankfurter wrote that: 

Science with all its advances has not given us 
instruments for determining when the impact of such 
newspaper exploitation has spent itself or whether 
the powerful impression bound to be made by such 
inflaming articles as here preceded the trial can 
be dissipated in the' mind of the average juror by 
the tame and often pedestrian proceedings in court. 
Over twenty years later, the legal literature generally dismisses 
empirical studies of judicial remedies with the comment that they 
provide, "inadequate understanding of the way pretrial publicity 
influences the thought processes of prospective jurors" (American 



Bar AsEOCiation, 1^78. p. 20). 

In tt", IS paper we focuE or, the question of whether juages, 
attcrntyS, journalists and others have sufficient knowledge or' 
guidance to achieve a balance between press and bench that 
preserves freedom and justice. In the first section we review 
the legal literature to explicate how the law has set the balance 
in the past two decades and prescribed the actions of judges and 
otfier parties to maintain that balance. These prescriptions are 
based on behavioral assufrpt i ons about potential jurors and the 
ability of the court to minimize the impact of news coverage. In 
the second section we review the social science literature that 
addresses the assumpt i ons underlying legal procedures. After 
critically summarising what is known about judicial and juridic 
behavior, we suggest how systematic empirical research could 
provide an improved basis for striking the balance between news 
coverage and fair trial. 

CASE LAW AND LEGAL STANDARDS 

The past two decades have been critical for seeking a 
balance between the courts and the technologically-empowered mass 
media. In the 1960s, concern emerged that the mass media were so 
powerful that they endangered the defendant's right to a fair 
trial. It was an era. and a Supreme Court that emphasized the 
rights of the defendant. However, only a few years later the 
attitudes of society and of the Court had shifted toward an 
emphasis on the rights of the press and attorneys (cf. Nebraska_ 
Pre5s_Assgci^ati.oQ_y^_Stuart , 1976, and American Bar Association, 
1978). We shall examine these events and the assumptions about 



media and jurors that they reveal. 
£yct^±.I.i.03_blgt! = _CQ;sHC§9g_lD_the_1.9A03 

The 196(1'" 5 ushered in a series o-f cases in which the 
SupreiTie Court e, pressed concern about tne impact o-f news coverage 

on jury verdicts. In irv3^n_y^; Dgwd (1961), the Court vacated a 

conviction and death sentence on the grounds that the jury, which 
included eight persons who admitted during yoi^r_di^re that the> 
thought the accused was guilty, did not meet the constitutional 
standards o-f impartiality. The accused's con-fessions to six 
murders had beer, highly publicized in the county to which venue 
had been changed. The Supreme Court argued that, although state 
lav* provided -for only one change c-f venue, the trial court had 
discretion to grant a second change of venue to preserve the 
de-fendant's constitutional right to a fair trial. 

In Ri_dH£y_'^z b;5yL51^Q§ <1963), the Court argued that 

Flideau's con-fession to a murder had been staged by local law 
en + orcement o-f-ficials and broadcast on television repeatedly for 
three da/s. The trial judge refused to grant a change of venue. 
The Court stated: 

For anyone who has ever watched television the 
conclusion cannot be avoided that this spectacle... 
was Rideau's trial — at which he peaded guilty to 
murder. Any subsequent court proceedings in a 
community so pervasively exposed to such a spectacle 
could be but a hollow formality. <B"ideau, 1963:726) 

The landmark case was She2Bard_y^; Maxwel_l_ (1966), in which 

the Court overturned the 1954 conviction of Dr. Samuel Sheppard 

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■for the murder o-f his wife. The Court held that the publicity et 
both pretrial and trial stages was "massive, pervasive and 
prejudicial... and prevented (Sheppard) -froiT. receiving a fair 
trial" <3ht2B^CH5 196b:334). Justice ClarL, writing -far the 
majority, eiTiphasized that "the courts must take such steps t> 
rule and regulation that will protect their processes from 
prejudicial outside interferences" ;id.:3tr-). The Sheg^ard court 
further stated that, 

the trial courts must tal:e strong measures to 
ensure that the balance is never weighed against 
the accused... (W>here there is a reasgnatl_e 
llh^lltlQQd that prejudicial news prior to trial 
Will prevent a fair trial, the judge should 
continue the case until the threat abates, or 
transfer it to another court not so perfTisated 
with publicity, (emphasis added) ( I d .: 362-363 ) 
The ShegQa^d decision is widely considered to be a mandate 
to trial courts regarding the problems caused by publicity (U. 5. 
•Judicial Con-t-er ence, 1969, p. 395) and as having imposed an 
"affirmative cut/" on judges (Judge Tom Wicker, personal 
coT^i^T.uni cat 1 on , August, 19S3) to remedy its perceived effects. 
This view is supported by numerous articles written by and for 
judges (En ckson, 1977; Fretz, 1977; Younger, 1977). 

The Sheggard decision quickly resulted in the promulgation 
of codes and standards to be used by those involved in court 
proceedings. These concern specifications of what information 
poses a threat to a fair trial, a set of restraints upon 



proposed that pretrial proceedingE, be closed to the public (and 
the press) unless the presiding of-ficer determines that there is 
no "substantial likelihood" that i n-f ormat ion adduced at the 
hearings will inter-fere with the de-fendant's right to a -fair 
trial by an impartial jury. In contrast, the Committee on the 
Operation o-f the Jury System o-f the Judicial Cor-ference o-f the 
United States m 1968 declined to make a recommendation about the 
exclusion o-F the media -from pretrial and other hearings (Judicial 
Con-ference o-f the U. S. , 1969). 

The SheB23C^ decision and the 1968 Reardon Report also 
emphasized the use o-f various remedi_e5 that operate to minimize 
the impact o-f publicity on jury verdicts, thus striving to 
preserve a -fair trial given the -full and active e-f-forts o-f a -free 
press. The Reardon Report recommended that motions for change o-f 
venue or continuance be granted when there is a "reasonable 
likelihood" that, without the relief, a fair trial cannot be had 
because of the dissemination of potentially-prejudicial material. 
When the potentially prejudicial information has been intense and 
geographically concentrated, it is suggested that jurors from 
other areas be drawn to serve (change of venire). The report 
also stressed the importance of individual ygi_r_di.re in cases o-f 
possible prejudice. If the prospective juror remembers highly 
significant information, such as a confession or other 
incriminating information that may be inadmissible, he or she 
should be subject to challenge for cause (ABA, 1968, p. 137). 
During trial, the drafters of the ABA standards suggest that 
judges caution jurors not to read or listen to accounts of the 

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case and, when necessary, that jurors be sequestered to prevent 
exposure to trial publicity. 
LeEsgned_Cgncern_0yer_N'ews_Cgyeraye_]^n_the_]^970s 

In the decade and one— hal-f since the Reardon Report, there 
has been a considerable shi-ft in the relative concern over First 
and Sixth Amendment rights. There is now less desire to restrict 
the -flow o-f in-formation about cases, but there is considerable 
inconsistency in the codes and standards currently extant. 

Attorneys were the -first group to explicitly -fight -for 
their right to speak out about cases. In ChicaQg_Councii_c£_ 
Lawxers_y^_Bauer (1975), the U. S. Court o-f Appeals -for the 
Seventh Circuit overturned a court proscription o-f extrajudicial 
attorney statements and substituted a less restrictive "serious 
and imminent threat" standard. But, in Hirschkgg_y^_3nead 
(1979), the Fourth Circuit in Virginia upheld the reasonable 
likelihood test -for criminal litigation, as did the Supreme Court 
o-f New Jersey (lD_re_Hi.nds, 1982) . These courts and others 
(Shadid_y^_Jacksgn, 1931 ; RygQieri_y^_Jghns-Manyllle_Prgducts_ 
QQCBQ!l§ti_gn, 1980) hold this standard to be an unconstitutional 
denial o-f attorney's -free speech in ci.yi.l_ litigation. 

A major change occurred when, in b!ebraska_Press_As3gci atign_ 
yi_Stuart (1976), the Supreme Court ruled that the media could 
not be restrained from publishing potentially-prejudicial 
in-formation, despite the -fact that Nebraska statutes severely 
limited changes o-f venue and continuances. The court ruled that 
there had been no express -findings that other remedies would not 
su-f-fice and that there was not a "clear and present danger" that 

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newE C'/veraqe would impinge on the de-f endant " s right to a -Fair 
trial. Attention then shi-fted to keeping the press -from 
obtaining information by restraining media sources and closing 
judicial proceedings. 

However, professional codes and standards developed or 
revised in the late 1970' s provide little consensus about 
standards regarding attorney statements. The 197S draft of the 
Standards on Criminal Justice Relating to Fair Trial and Free 
Press substituted the less restrictive "clear and present danger" 
standard which they consider substantially indistinguishable from 
the "serious and imminent threat" wording of Chi_cai5g_Cgunci.l__gf _ 
L^biyeci (ABA, 197B: Section 8-1.1). In 19S3, the ABA Delegates 
adopted the tiodel Rules o> Professional Conduct formulated by the 
ABA Commission on Evaluation of Professional Standards (Kutak 
Commission), which state that, "a lawyer shall not make an 
extrajudicial statement that the lawyer knows or reasonably 
should know will have a substant i^al^_l^i^kel_i_hODd of materially 
prejudicing an adjudicative proceeding" (emphasis added) (ABA, 
19B3:F;ule 3.6). To further complicate matters, the Judicial 
Conference of the United States in 19S0 approved the Revised 
Report on the Operation of the Jury System on the "Free 
Press-Fair Trial" issue, in which the special subcommittee 
concluded that the "reasonable likelihood" standard was the 
appropriate one for use in regulating attorney comment in 
criminal litigation (Judicial Conference of the U. S. , 1930) . 

The second edition of the Fair Trial and Free Press 
Standards of the ABA also changed the standards relating to 

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judicial employees. The "clear and present dange."" standard ^as 
adopted reqc^-ding prohibition o-f the release o-f information 
relating to i nv'est i gati on and trial. Only statements regardirg 
con-fessions and plea bargaining were absolutely proscribed. They 
continued to recommend sel -f — regul ati on by the police (ABA, 
1978:9). 

In contrast to the Reardon Committee concern that pretrial 
proceedings be closed to the public unless there is no 
"substantial likelihood" o-f compromising the right to a -fair 
trial, the 1978 ABA Standards contain a strong presumption in 
•favor o-f open judicial proceedings and -free access to records in 
criminal cases. The language o-f the Standards parallels the 
ruling in Nebraska_Press. To close pretrial proceedings or seal 
a record, the new Standards state that the moving party must 
establish that: (l)a "clear and present danger" to the trial 
would e;:ist i -f the in-formation were publicly disclosed, and 
(2) the prejudicial e-f-fect could not be avoided by reasonable 
alternative means such as a continuance or change o-f venue. In 

Gannett_Co^_y^ DePasgual_e ( 1979) , the Supreme Court rendered a 5-4 

decision with 5 separate opinions that upheld an ev.clusion o-f the 
press and public -from a pretrial suppression hearin-Q. Although 
the circumstances o-f Gannett were o-f a pretrial hearing, the 
Court held that "members o-f the public have no constitutional 
right under the Sixth and Fourteenth Amendments to attend 
cri_mi_nal__tri_al^s" (emphasis added) ( Id. : 391) . The Gannett decision 
engendered considerable legal commentary (Good, 1980; Monk, 19S1; 
NYBA, 19B0) . Some state courts have ruled that the public and 

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the press have the right to attend Eretri^al hearings in criminal 

prosecutions, despite the Gannett holding (e.g., Ne^._Jersey_y^ 

Williams, 1933) . In Bl£!l'DSQd_blg*:^=EsEerSi_Xnc^ y^_yi^rgini_a ( 19B0) , 
the Supreme Court clari-fied some o-f the con^^usion by holding that 
the First Amendment implicitly guarantees the right o-f the public 
and press to attend criminal trials. 

The 197B ABA Committee on Fair Trial and Free Press made 
several changes in its recommendations regarding remedi^es. The 
commentators suggest that the standard to be used in granting a 
motion -for a continuance or change of venue or in ordering 
sequestration o-f the jury should be that a "substantial 
likelihood" o-f prejudice would otherwise e;; i st . In addition, the 
dra-fters recommend that the court delay ruling until a-fter the 
yDir_di,re examination. The commentators to the second edition 
appear mors cautious regarding the e-f -f ecti venss o-f ygir_dire than 
were those in 1968. Their caution is due to: 

( 1 ) inadequate understanding of the way pretrial 
publicity in-fluences the thought processes of 
prospective jurors; (2)the tendency among a significant 
number of jurors to underplay the importance of 
exposure to pretrial publicity and to exaggerate 
their ability to be impartial; and (3) persi stent 
concern about the ability of attorneys and trial 
judges to discern bias, particularly at the 
subconscious level, even when the prospective j aror 
is being completely candid. (ABA, 1978: 20) 
In essence, although Sheegard created a more active role 

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■for judges, there has not been su -ficient guidance o-f-fei-ed tc 
judgeE, regarding how to preserve fairness and openness 
si mul taneoLtsl y . In an era o-f debate over standards and remedies, 
the availability of empirical results regarding the impact o-f 
news coverage on jurors in the context of judicial remedies would 
be valuable to the court. 

iMt:iRiCAL_SOClAL_SCIENCE_RESEARCH 
There is a moderate-sized literature on the effects of news 
coverage on jury verdicts, arising froiT. several sources: 
journalists interested in the impact of media stories, social 
psychologists and sociologists interested in courtrootTi 
functioning, and social scientists •.•^ho have acted as consultants 
to lawyers seeling to select a jury or to argue for a change of 
venue. Given the breadth of attention, it is surprising that so 
little is known. As our review will point out, research on the 
effects of news coverage has either been poorly controlled or has 
asked the wrong questions. The courts most need to know the 
answers to three questions: ( 1 ) What kinds of news coverage 
influence potential jurors? (2)Does this influence persist in 
actual trials after appropriate judicial remedies? and (3)What 
can be done, if necessary, to better balance fair trial and free 
press? Our review is organized methodologically: we first 
describe studies of the extent and nature of news coverage, then 
turn to studies of the impact of news coverage in actual trials, 
and finally examine the impact of news coverage and judicial 
remedies in simulated cases. 

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!l:JE':^S_Cgyera^e_g£_Cri.Qje 

Content analyses o-f newspaper coverage reveal that seriosjs 
crime dDiT:inates the news (Antunes S< Hurley, 197S; Hu:Tiphries, 
1981) and that papers tend to present the prosecution side of the 
case (Drechal et ai . , 1980; Millpaugh, 1949). The bulk o-f this 
coverage comes at the time o-f arrest (ABA, 1968; Friendly S< 
Gold-farb, 1967; Hough, 1970). However, between arrest and trial, 
the potential -for prejudice increases. A content analysis 
conducted by the Rear don Committee in 23 metropolitan areas 
revealed 120 reports o-f con-fessions and/or other statements by 
the accused and SO instances o-f reports o-f prior criminal rBucrd 
during a QQe-mgnth_Eer i_gd. The primary source o-f the in-formation 
was the police. From the commencement o-f trial, the source o-f 
publicity shi-fts to the prosecutor (ABA, 1968). 

The press is not without sensitivity to the issues o-f -fair 
trial. The media frequently cooperate with requests by judges 
that they re-frain from or delay publishing 

potentially-prejudicial information (Barth, 1976). However, the 
competition in important cases makes cooperation di-f-ficult. For 
example, the Atlanta press underplayed the mass child murders so 
as not to "create a mass killer where none existed" (Shields, 
1931, p. 33). Un-f ortunately, the national news undermined the 
local restraint by releasing in-formation that probably should 
have been withheld (Shields, 1981). Press cooperation is also 
evident in the use o-f voluntary Bar-Press guidelines in sseveral 
locales. Fretz (1977) and the ABA (1974) report surveys 
indicating that the bar and media were happy with the agreements. 



-i; 



Empirical studies linking press coverage to guidelines indicate 
-favorable results in Washington State (Glein, i9S0) but lack oi 
compliance across many other states (Tankard et ai . , 1979). 
Etudiei_gi_ActuaI_Cases 

A number o-f researchers have surveyed public opinion 
■following e;; tensive news coverage in actual cases. For e;;ample, 
Simon ?< Eimermann (1971) surveyed registered voters about a 
highly-publicized murder case. Seventy-nine percent had heard 
about the case. O-f these, 75"/. could supply details. Those who 
could supply details were more likelv to -feel pro-prosecution 
about the case and less likely to -feel the de-fendants could 
receive a -fair trial, but were no less likely to -feel they could 
hear the evidence with an open mind (the typical question in voi^r. 
dire) than those who could not supply details. However, 
interpretation is made di-fficult by unknown di -f -f erences between 
those who read and remember the local news, and those who do r.ot. 

Rollings and Blascovich (1977) surveyed college student 
opinions about the Patty Hearst case -four days after her arrest 
and again 23 days a-fter arrest. They -found a very strong belie-f 
that Hearst would be convicted that did not di-f-fer over time. 
Although they conclude that publicity may not have strong 
e-f-fects, it seems almost certain that publicity had already had 
an enormous e-f-fect by the time they took their -first survey. 

Several studies compare attitudes in di-f-ferent counties, 
generally as preparation -for a motion to change venue (McConahay, 
Mullen 8/ Frederick, 1977; Nietsel Z< Dillehay, 1982; Pollock, 
1977; Riley, 1973; Vidmar ?< Judson, 1931). These studies are 

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consistent in showing that counties in which the crime occLtrred 
were more pro-prosecution than at least some other counties, and 
people in those counties (new more -facts thought to be 
prejudicial to the defense. Those knowing more about the case 
tend to be pro-prosecution. For e;cample, in one case two-thirds 
of the s'enue county knew about a previous conviction of the 
defendant's but only 2/1 knew in a county preferred by the 
defense. However, it is difficult to know whether these 
differences reflect news coverage or preexisting attitudinal 
biases. For example, in McCoriahay et el's surveys for the trial 
of Joan Little, there were no apparent differences among counties 
in e; posure to news coverage, but the county in which the cr itr.e 
occurred and a neighbor iny county tended to believe the 
self-defense claim less than a county from a more urban part of 
North Carolina. However, there was also more evidence of racist 
attitudes prejudicial to blacks (including black defendants) in 
the more rural counties. 

By far the most ambitious and interesting survey study was 
performed by Constantini and King (1981) regarding three criminal 
cases in California. They found that respondents with greater 
knowledge about each case were more likely to be 

pro-prosecution. Further, the more different media sources to 
which a respondent attended, the greater his/her knowledge of the 
case. Pretrial knowledge was the best predictor of prejudgment 
and was relatively independent of other attitudinal and 
demographic predictors of case bias. 

Attempts to relate publicity to actual verdicts Ar& clearly 



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more di-f-ficult than attempts to show prejudice in the public 
since there is so much variability across specific trials and th.e 
particular jurors selected. It is not surprising, therefore, 
that such attempts are not very revealing. Hough (1970) studied 
all crimes publicized during si>; months in the Detrgit_Free_ 
Press. Of 32 defendants whose cases received some news coverage 
during the first months of his study, six were heard by a jury, 
and five were convicted. Reuben (1974) identified twenty trials 
in the Chicago area that had received "massive" pre-trial news 
coverage. None were convicted. Of course, one cannot tell from 
these studies what would happen to si^mil^ar cases that received 
different nev-js coverage. 

Grady (1972) surveyed 205 e;:-jurors who had served in 46 
cases that had received pre-trial news coverage. Only 97. 
reported hearing anything other than the fact of a crime and 
arrest. Of 21 jurors admitting that they had presumed guilt, 
most reported learning no more from news coverage than the fact 
of crime and arrest. Although Grady concluded that news coverage 
exerted little effect, the long time interval between interview 
and trial, demand characteristics about not prejudging a case, 
and the fact that over one-half the jurors in these cases either 
could not be found or refused to participate in the study, lead 
us to doubt the clarity of this conclusion. 

Thus, the available social science literature on the 
effects of actual news coverage on potential jurors or nn actual 
jury verdicts is not very useful. It appears that news coverage 
in highly-publicized cases may influence the public, but it is 

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also possible that those who Are pro-prosecution choose to e;:pose 
themselves to :nore nevv»s and/or remember more o-f it. Thiere is 
little evidence o-f any pervasive e-f + ect o-f news coverage on 
actual verdicts, although in the cases sampled it would be no 
surprise that case evidence -far outweighs the e-f-fects o-f news 
coverage. 

In order to gather -furth:er in-formation regarding the 
potential con-flicts between news coverage and -fair trial, we 
conducted a series o-f interviews with 15 judges, 9 de-fense 
attorneys, 6 prosecutors, 4 media attorneys, 4 law pro-fessors, 
and 20 journalists, drawn as a convenience sample -from Chicago, 
Boston, Atlanta, Milwau^:ee, Flint (Michigan) and Rock-ford 

(Illinois). An additional survey questionnaire was distributed 
to 150 judges attending classes at the National Judicial College 
in Reno, Nevada. 96 completed questionnaires -from judges in 33 
states were returned. 

The majority o-f interviewees were able to recall at least 
one case (usually a case in which they were involved) where nfejws 
coverage had posed a threat to the de-f endant "■ s right to a -fair 
trial. However, the majority o-f the interviewees -felt that the 
concern c>\/er news coverage tends to be exaggerated. Only de-fense 
attorneys voiced the opinion that news coverage has a de-finite 
impact on jurors. In the Wayne Williams trial, one o^ the most, 
publicized cases o-f the decade, very little refnedial action was 
taken by the court. One of Williams' attorneys told us that some 
o-f the accepted jurors admitted having -fixed opinions about guilt 

(Mary Welcome, personal communication, August, 1983). The 

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Williams case is presently being appealed, in part due to the 
news coverage issue. 

There was general consensus that news coverage o-f cases is 
more problematic in small towns. Murders, cases involving 
well-known people or public o-fficials, and se;; crimes were 
considered to draw the most coverage. Prior record, con-f essi ons, 
and inadmiEsable evidence were considered most prejudicial. 

Judges, prosecutors, and reporters were generally o-f the 
opinion that existing remedies work. Judges consider jurors to 
be candid and conscientious, and believe that jurors can set 
aside preconceived biases and remain impartial. Accordingly, 
judges are strong believers in ygi_r_di_re. They relate instances 
in which hundreds o-f potential jurors Are interviewed be-fore 
obtaining a jury and treat this as a success -for the system. 
They also find instructions to jurors, sequestration, 
continuance, additional peremptory challenges and gag orders on 
attorneys to be use-ful. Interestingly, over one-hal-f indicate 
some success in asking -for media cooperation in withholding or 
delaying disclosure o-f i n-f ormati on . Prosecutors were essentially 
in agreement with judges. Journalists believe that most 
potential jurors do not even read or listen to the news. Only 
de-fense attorneys indicated a need for remedies. They are 
reluctant to use sequestration because jurors blame the de-fense 
for the inconvenience. They often mention change of vso'ie or 
venire as viable remedies, but change of venue is inf requentl y 
granted by judges. They also report that gag orders on attorneys 
BrB almost never enforced. 

-IS- 



Un-f or tunatel y, these opinions, are open to a variety of 
interpretations because they represent the weapons o-f an 
adversary systeiTi. Judges and prosecutors express the belie-f that 
news coverage can be controlled; yet news coverage typically 
strengthens the state's case. Journalists say they have little 
impact on jurors, and by so declaring help maintain their access 
to news and the public. De-fense attorneys attack news coverage 
to keep the media -from -further damaging their clients and to keep 
open the practicality ot using the publicity issue to manipulate 
the case or the appeal . 
Btudi_e5_o£_Si^muiated_Case5 

Several studies have -focused on the e-ffects o-f variations 
in pre-trial news coverage on estimates o-f guiltiness when no 
case -facts were presented beyond the news stories themselves. 
These studies attempt to assess a purely prejudicial attitude 
with no direct evidence that it would carry over into verdicts in 
a trial. The results are quite consistent- Reports o-f a 
con-fession are most -frequently -found to increase judgments o-f 
guilt (DeLuca, 1979; Tans 2< Cha-f-fee, 1966; Wilco; S< McCombs, 
1967). The addition oi a prior record also increases judgments 
o-f guilt (DeLuca, 1979; Hvistendahl, 1979) although Wilcox and 
McCombs (1967) -fail to -find an e-f-fect o-f record. DeLuca (1979) 
■found that reports o-f a -failed lie-detector test also increased 
guilt ratings. These -facts are all considered highly pr fc>JL'di li al 
in the ABA Standards (ABA, 1978). Interestingly, the addition of 
-favorable -facts in a news report does not decrease guilt ratings 
below control conditions. This includes -favorable statements by 

-19- 



the district attorney <Tans t. Cha-f-fee, 1966;, denial o+ guilt by 
the suspect (DeLuca, 1979; Tans Z< Cha-f-fee, 1966) , and passing a 
lie-detector test (DeLuca, 1979). This is consistent with a 
sizeable social psychological literature on the greater strength 
o-f negative in-f ormat i on (Carroll, 1979; Ka.nouse J'. Hanson, 1972). 
The most e-f-fective positive -fact was a release -from custody (Tans 
8/ Cha-f-fee, 1966), which is interesting in the light o-f the e-f-fect 
D-f bail status on verdicts and sentences (e.g., Eisenstein 8< 
Jacob, 1977). 

More interesting Are the experiments that vary pre-trial 
news coverage and then show Tiock jurors transcripts or videotapes 
o-f the reenacted trial. In two decades since the -first such 
studies, there have been fewer than a dozen o-f this type. Biven 
the number of issues involved, the variations in methods, rigor, 
and realism, it is not surprising that our sum total of knowledge 
is quite small. 

The early prototype of these studies was Simon (1966). 3hs 
presented subjects from voter registration rolls with either a 
factual newspaper clippings of a murder case, or sensational 
clippings with gory details and references to a criminal reco!"c. 
Subjects were asked immediately to state verdict preferences, 
which were strongly related to their exposure to the news 
reports. Subjects then heard an audiotaped simulation of the 
trial, preceded by a judicial admonition to lay aside si 
preconceptions and to base their verdicts on the evidence, not 
the speculation of newspapers. Subjects' post-trial judgments of 
guilt were unaffected by their prior exposure to news. Simon 
concluded that the judicial admonition led the subjects to "reach 



-20- 



a verdict solely on the basis o-f what they heard at the trial" 
(p. 42) . 

There are several good reasons to question this 
conclusion. First, without any conditions lacking judicial 
admonitions, we cannot test the conclusion directly. The absense 
D-f an et-fect -for news could be due to other -features such as a 
generally weak case (under 25'/. voted guilty). Second, the letter 
inviting participation identified the study as -focusing on "the 
problem o-F trial publicity." Coupled with the judge's reminder, 
this creates w&ry strong demand characteristics (Orne, 1962). 

Several other studies have investigated the possibly 
moderating effect of judicial admonitions. Sue, Smith, and 
Gilbert (1974) used newspaper articles about a gun found in the 
defendant's room. It was either not the murder weapon or was the 
murder weapon but the evidence was inadmissable due to an illegal 
search. Subjects received judicial instructions that either did 
or did not admonish them to disregard extra-evidential sources of 
information, including newspapers. After reading a cne-page 
summary of the case, they gave verdicts and rated the defense and 
prosecution cases. The results are opposite to those of Simon: 
subjects' verdicts were influenced by news reports (43X to 23/1 
guilty) and this occured regardless of judicial i nstruct i ons= 
Further, this effect occurred for female jurors but noL iar 
males. Kline and Jess (1966) found an effect for news nc.jarts. 
despite judicial admonitions in that jurors still talked about 
the news stories during deliberation. Sue, Smith, Z( Pedrosa 
(1975) and Padawar-Si nger and colleagues in two studies 

-21- 



(F'adawar-Si nqtr ?< Barton, 1975; Padawar-Si nqer , Sinyer, S< Singer, 
1974, 1977) ai50 -found an e-f-fect -for news reports despite 
judicial admonitions. The only other stuay to -fail to -find such 
an et-fect (Keelen, 1979) has several serious fTiethodological 
problems (e.g., reanalyses o-f the raw data in the thesis do not 
correspond with reported e-f-fects and tables, Kerr ?/. MacCouri, 
1993). In general, the data suggest that judicial admonitions do 
not eliminate biasing e-f-fects of pretrial publicity (c-f . Lind, 
1982; Sales, Elwork, ?-. Al-fini, 1977). 

Several studies e;;amine the possibility that jurors whcse 
opinions have been prejudiced by news coverage can be removed by 
voir_di^re, thus preserving a fair trial. Sue et_al. (1975) asked 
subjects whether they could judge the defendant in a fair and 
unbiased manner in view of the pre-trial publicity. (Similar 
questions are used during ygi^r_di_re to disqualify jurors.) Those 
who admitted bias were more likely to convict than those who did 
not, but, more importantly, a strong effect remained among those 
subjects who had indicated their impartiality. Padawar-Singer e-*" 
al (1974) report that voi^rdi^re diminished the effect of news 
coverage in comparison to subjects who were not selected in this 
manner. However, what actually happened is that instead of '^QLC- 
dire reducing the conviction rate among subjects exposed to 
prejudicial news reports, it appears to have increased the 
conviction rate among those exposed to neutral news reports. 
What apparently happened is that all juries for each condition 
were run before moving on to the next condition; the last 
condition (No voir dire/Neutral news) was run after so;T;e dramatic 



public events that n\a; isve inflated conviction rates m that 
condi t i on. 

Several studies have investigated the possibility that jury 
deliberation may reduce the impact o-f news cover age. Kline and 
Jess (1966) found that all four juries exposed to prejudicial 
reports referred to the news stories during deliberation, 
contrary to judicial admonitions, and one based its verdict, in 
part, on the netMS reports. Davis (1979) found no effect of news 
reports before or after deliberation, probably because the 
prejudicial article was seen as biased and lacking credibility. 
Davis was also the only study to investigate the effects of a 
delay (one weer ) on the news impact, but null results in all 
conditions provide no information. Zanzola (1977) found effects 
of news coverage after deliberation despite the fact that 
pre-del iber at i on guilt ratings showed no effect. Although the 
effect was due to news reports favorable to the defendant, it 
illustrates the possibility that group deliberation can 
exacerbate rather than ameliorate the effects of news coverage. 
The two experiments by F'adawar-Si nger and colleagues suggest 
effects of news coverage after deliberation, but lack of power 
and lact: of pre-del i berati on guilt judgments reduce the 
usefulness of these studies. 

Several studies have examined juror character i sti :::5 £»£ 
mediators of the effects of news coverage. Sue et al (1974) 
found that student jurors and non-student volunteers solicited in 
various public places both responded to pre-trial news coverage. 
Sue et al (1975) found an effect of juror authoritarianism on 



verdicts, b t no interaction o-f author i tar i am sm with news. The 
most interesting results involve se;; : Sue et al (1974), Hoiberg 
and Stires (1973) and Tans and Cha-f-fee (1966) all find greater 
sensitivity to pretrial news reports amony women than among men. 
However, this e-f-fect may be attributable to the use o-f crimes 
perceived as more serious by women than by men: the murder of a 
child (Sue et al , 1974) and a rape (Hoiberg ?< Stires, 1973). We 
might there-fore expect women to be more concerned with avoiding 
■falsely acquitting a guilty de-fendant, which in turn would shi-ft 
the verdict criterion or burden of proof (Kerr, 1978) and tnake 
women more sensitive to pre-trial news. In other words, the 
relative sensitivity of women to news reports may be specific to 
certain crime types rather than a general susceptibility. 

The results of these experiments sirB mixed — some studies 
obtain effects of news coverage, others do not. In general, the 
studies with individual mock jurors and strong designs have found 
such effects; studies that failed to find effects have been 
plagued by methodological problems such as experimental demands, 
low power, weak manipulations, floor effects, and confounding. 
Despite claims to the contrary, there is little evidence that the 
effects of publicity are attenuated by judicial instructions, 
vDi^r_di_re, or deliberation. There seems to be reasonable 
evidence that instructions (Sue et al . , 1974) and deliberation 
(Zanzola, 1977) are ineffective. 

In conclusion, our understanding of the effects of news 
coverage is still fragmentary. There are multiple demon*: trat ions 
that press coverage of pending trials is strongly related ta 

-24- 



public opinion. We have some indicatior. of what is the moEt 
prejudicial i n-Format i on (con-f esei ont, and then prior record). 
There is eviderice that these effects can carry through a trial to 
jury verdicts, but there is very little evidence regarding the 
.effectiveness of various remedies applied by the court. Studies 
are needed that not only reach a high degree of realism in the 
minds of sub j ect-j ur or s, but also span the domains of news, 
cases, and courtroom remedies sc as to allow predictions of when 
publicity would be a problem and when the remedies under the 
control of the court are effective (Wells, 1^78). 

DIRECTIONS FOR FUTURE RESEARCH 

There remains a great need to address critical issues about 
news coverage, juror behavior, and the most important remedies 
upon which the courts rely — judicial admonitions, yoi_r_dire, 
continuances and delay, and the process of deliberation. We 
believe that scientific research offers an appropriate means for 
providing the kind of information upon which legal codes and 
procedures can be based. Although no single social scientific 
study is free from criticism, we believe a body of carefully 
conducted studies could be assembled over time that would provide 
appropriate guidance to the courts and other concerned parties. 
In the final section of the paper, we offer some suggest i nr.t-, +or 
relevant, realistic, and valid research. 
WhLch_Remedi_es? 

We believe that initial research attention should 



concentrate on yoi^r_di^re, continuance, judicial instructions, and 
jury deliberation. These Bre commonly used and their presumed 
e-f -f ecti veness is based on assumptions about juror psycholoyy. 
Other remedies a.re o+ less research interest -for various 
reasons. Recent case law and -first amendment concerns have 
curtailed attempts to limit press freedoms (e.g., prior restraint 
of publication, Nebr aslKa_Press_As50ci^at i^OQ_v^_Etuart , 1976). 
Changes o-f venue and venire Are expensive, may involve major 
inconvenience to litigants, and may be viewed as admissions o-f an 
inability to deal with news coverage. Perhaps more inpcrtantiy 
as -far as social science is concerned, the e-f feet i veness o-f these 
remedies is less a matter of psychology than of admi ni strati v-3 
effectiveness (e.g., can an une;cposed venue be found?). 

Re sear ch_EmQh as 2^2 i^ny_Real^i^5m 

An excellent starting point would be research employing 
realistic cases, publicity, and involved parties. (See Bray ^y. 
V-err , 19S2, for a review of the debate over realism in jury 
research.) For example, one possible approach would be to 
conduct post-trial interviews with actual jurors who served in 
high-publicity cases (cf. Grady, 1972). The-/ could be asked to 
recollect the events surrounding the trial, to recall what was 
said about publicity during the trial and deliberation, rshether 
any of the jurors introduced information originating with the 
media and, if so, how that information was received by the jury. 
This method offers a high degree of naturalism, obtaining 
information on actual trials of interest without being inside the 



Ih- 



jury room. Haivever , jurors may not recall, or may systeiTiat i cal 1 y 
distort, their e;;perience5 in order to present a 
■favorable image. Further, those who e,re willing to be 
interviewed iv.a.y be unrepresentative o-f their juries. Attempts 
should be made to interview as many jurors -from each trial as 
possible and to motivate them to be truth-ful. 

A second realistic method would be the use ai shadow juries 
(e.g., Zeisel ?■. Diamond, 1974) who sit in court and observe one 
or more actual high-publicity trials, and then deliberate to a 
verdict. Shadow jurors drawn in a way similar to the actual 
jurors would then have been similarly eicposed to trial 
publicity. Shadow jury ^ liberations can be directly observed, 
thereby avoiding the problems with sel-f-report recollections 
mentioned above. The shadow jury procedure does have drawbacks. 
It can be prohibitively expensive, particularly i ^F multiple 
juries are used and i -f the trial turns out to take loiiger than 
expected, involves 

continuances, or is settled unexpectedly. It is dit-ficult tn 
ensure comparable shadow jurors unless the court extends its 
subpoena powers to obtain the shadow jurors and the attorneys 
conduct a comparable yoi^r_di^re. Shadow jurors also may behave 
dif-ferently because they know they are being observed and are not 
actually determining the defendant's fate. Finally, this method 
suffers from the same internal validity problem as does 
post-verdict interviews: reliance on juror self-reports of the 
extent of their exposure to publicity. 
Research_EmBhasi_2i.n9_Cgntrgl_ 

-27- 



Highly realistic -field studies should be co.Tipl emerted by 
iTiorB carefully-controlled research, even i -f that research is less 
naturalistic. E;:peri mental jury simulations are a powerful 
method (although controversial. Bra/ ?■-. Kerr, 1982; Weitan ?■. 
Diamond, 1979). In our judgment, studies oi this type should 
-focus on the effectiveness of judicial remedies under various 
circumstances. The basic design would compare three groups of 
moct jurors: a control group never exposed to any pretrial news 
coverage who read case facts and deliver a verdict; a group 
exposed tc prejudicial news coverage in a realistic way who then 
res-.d ca'Ee facts and deliver a verdict; and a group exposed to the 
publicity who are given a remedial procedure such as delay 
between exposure and trial, judicial instructions, or opportunity 
to deliberate before reaching a verdict. 

This general procedure could be used to ej-camine interesting 
■variations in case type, type of publicity, and type o-f remec' .. 
For example, it would be important to see whether some remedi'^js 
were more effective for reducing the effects of the hei_n3ysness 
of publicity (its capacity for 

arousing emotion. Hoi berg ?< St ires, 1973) or the level of 
Brejudgmont in the publicity (its probative value). Does a 
continuance aid more in letting passions cool or in letting 
prejudicial facts be forgotten'' 

Other questions could be addressed within this type 'A 
study. Remedies such as judicial admonitions may vary in 
effectiveness with the number o-f jurors exposed to news 
coverage. By systematically studying the effects of remedies and 



-2B- 



the composi 1 1 DP! o-f juries (one exposed juror vs. t\r.c vs. all), 

this CDulci be e:;pQlored. 

yoi.r_Di^re 

Our interviews with judges and attorneys and other research 
(e.g., Seibert, 1970) suggest that ygi_r_dlre is the most 
important remedy -for news coverage. Past research on the 
e-^ + ect 1 veness of YOi_r_di_re has been equivocal (F'enrod, 1979; 
Zeisel ?< E)iamond, 1978) despite the con-fident assertions o-f 
attorneys (e.g., Bailey ?y Rothblatt, 1971). However, this 
research has -focused on juror predispositions arising trojii 
general attitudes about authority, punishment, crime, de-fendants 
o-f a certain type, and so -forth, rather than on the ability to 
detect a sgec^fic bias produced by e>;posure to news coverage. 
This could be investigated as an adjunct to the experi mental 
studies described above. Mock jurors exposed to dif-ferent 
conditions o-f news coverage could be questioned in a realistic 
ygi_r_di_re that would be videotaped. These tapes could be shown 
to judges and attorneys who would be asked to identi+y those they 
would challenge -for cause or peremptor i al 1 y . This could allow an 
evaluation o-f whether those jurors exposed to prejudicial news 
coverage and passed through yoi^r_di_re would respond in the Carrie 
way as do jurors not exposed to the news coverage. 

An additional assumption underlying ycir_di.re is that 
subjects can report on their exposure to news coverage and 
attendant bias with su-f-ficient accuracy to guide challenges. 
However, it is possible that persons exposed to news coverage may 
not be able to recal_l_ spontaneously the exposure or CA-^e details 

-29- 



under voi^r;_dire yet C?b.9li.§kt this i n-f orrrist ion as they are 
pro'.ided with more cues to mefiiory during trial. This could be 
tested by constructing a trial and publicity not included at 
trial. Subjects' recollection -for -facts outside the trial coulo 
be tested be-fore trial (ie. in ygi_r_di_re) and a-fter trial to see 
whether some jurors could pass yoi_r_dire yet still e;;hibit 
prejudice based on exposure to nev-^s coverage. 
SDme_Caveats 

Natural 1 s(T-i and control are -frequently in cori-flict: gaining 
more o-f one may mean sacri-f icing some o-f the other. We strongly 
encourage the use o-f actual venires as subject populations, 
realistic publicity and trial situations designed in cooperation 
with court and media personnel, unlimited jury deliberation 
times, and realistic remedial procedures. We also stress that it 
is important to have both naturalism and control, but it is not 
necessary that each study be high on both characteristics. A 
series o-f studies with complementary strengths can provide valid 
and use-ful in-f ormat i on . 

3Ii!:^'IEiQANCE_gF_EMPIRICAL_RESEARCH 
It is our belief that social scientific research has great 
potential for assisting the court regarding news coverage. Ar- 
exemplified in the quote from Justice Frankfurter, the courts 
would like to know when news coverage constitutes a threat to a 
fair trial, and which available remedies can dissipate this 
threat without unduly restricting other freedoms. Empirical 
behavioral research could aid the courts, the press, and the 

-30- 



public i r. several ways. First, it is possible that news coverage 
will not a-f-Fect verdicts under realistic situations. This would 
strengthen the position o-f the press that responsible news 
coverage is not usually a threat to a -fair trial and strengthen 
the position of the court that it is capable o-f dealing with the 
media. A second possibility is that news coverage a-f-fects 
verdicts under some situations but not others. If this is the 
case, research could create a knowledge base capable of 
addressing issues about sel f -moni ton ng and educating the press, 
inforfTiing judges and other court personnel regarding the most 
effective remedies, and establishing the grounds for bar-press 
agreements and legislation. Finally, it is possible that 
research will cast doubt on the effectiveness of widely-used 
remedies such as yci_r_di_re, judicial instructions, and 
continuances. If so, researchers and policymakers must take 
steps to inform the press, improve the use of these remedies, or 
■focus on more restrictive methods. 

Clearly, one study or one series of studies will not 
establish the answers to the above concerns. However, 
carefully-conducted research may provide the basis for improved 
handling of news coverage. Further parametric studies could 
examine many aspects of publicity, length of delay, nature of 
instructions, and so forth. Studies can also address ren:edie=- 
and restraints that are of greater scope such as ciiange of venue, 
sequestration, and gag orders. Our assumption was that these 
more restrictive responses could virtually always produce a -fair 
trial, but at a possibly prohibitive cost to our freedoms and the 
atmosphere of justice. 

-31- 



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CASES CITES 

Chicago Council of Lawyers v. Bauer , 522 F.2d 242 (7th Cir. 1975) cert, denied . 42? 
U.S. 912 (1976). 

Gannett Co. v. DePasquale , 443 U.S. 368 (1979). 

Hirschkop v. Snead , 594 F.2d 356 (4th Cir. 1979). 

In re Hinds , 449 A.2d 483 (1982). 

Irvin v. Dowd , 366 U.S. 717 (1961). 

Marshall v. U.S. , 360 U.S. 310 (1959). 

Nebraska Press Association v. Stuart , 427 U.S. 530 (1876). 

New Jersey v. Williams , 459 A.2d 641 (1983). 

Primrose v. U.S. , 52 U.S.L.W. 3833 (1984). 

Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980). 

Rideau v. Louisiana, 373 U.S. 723 (1963). 



-37. 



Ruggieri v. John S. Manville Products Corporation . 503 F. Supp. 1036 (D.R.I., 1980). 

Shadid v. Jackson , 521 F.Supp 85 (E.D. Texas,lS81). 

Sheppard v. Maxwell , 384 U.S. 333 (1966). 

Stroble v. California . 343 U.S. 181 (1952). 

United States v. Burr , 25 F.Cus. 49 (C.C. Va. 1807). 

United States v. Tijerina , 412 F.2d 661 (10th Cir. 1969), cert, denied . 396 U.S. 990 
(1969). 



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