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
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
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.
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,
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
■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
case and, when necessary, that jurors be sequestered to prevent
exposure to trial publicity.
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
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
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
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,
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
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
■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.
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.
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.
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).
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
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
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
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
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
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.
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 .
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
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<
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
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
(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
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.
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
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
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.
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
the composi 1 1 DP! o-f juries (one exposed juror vs. t\r.c vs. all),
this CDulci be e:;pQlored.
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
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.
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 .
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
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
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3 TOBD DOM M63 31b