However…. The 1st amendment gives the mass media right to report crime news, including information and visual images that could prejudice an entire community against someone who has not yet stood trial and is still presumes innocent by the law.
“Remedies” for the fair trial/free press problem
The remedy: CAUTIONING POLICE, PRESEECUTERS, ETC. not to give information about a trial to the news media The problem: gags can be challenged by gagged on grounds that it interferes with 1st amendment right of expression and challenged by news media on grounds that it interferes with news gathering rights
The remedy: SHIELDING WITNESSES from the press.
The problem: such shielding can also be challenged on first amendment grounds, that is interferes with the medias newsgathering rights.
The remedy: CAUTIONING JOURNALISTS AGAINST PUBLISHING CERTAIN PREJUDICIAL INFORMATION prior to publication The problem: this is prior restraint, also known as…?
The remedy: ENCOURAGING THE US OF GUIDELINES or techniques for insulting trials (such as American Bar Association, which urges it members to not make extrajudicial statements which could prejudice a criminal proceeding; urges law enforcement officers and agencies to do same). The problem: guidelines are voluntary
The remedy: GRANTING A CHANGE OF VENUE, or moving the trial to a community less touched by pre-trial publicity, if news accounts in the area have created a situation in which it is unlikely the accused can get a fair trial there.
The remedy: GRANTING A CHANGE OF VENIRE, or importing a panel of jurors from another areas where they are less likely to have formed opinions about the case. The problem:
The remedy: RELYING ON TH ECOIR DIRE, the process under which prospective juror are screened. Attempts are made to exclude people form the jury whose previously formed opinions will prevent them from reaching a fair verdict based on the evidence presented during the trial The problem: this may eliminate potential jurors who follow the news and who can form intelligent opinions based on what they read or hear.
The remedy: CAUTIONING JURORS to avoid media accounts of the trial outside the courtroom. The problem: there I no accurate way to monitor this.
The remedy: SEQUESTERING THE JURY, or keeping them in a hotel during the trial, to reduce the risk of them being exposed to media accounts of the trial. The problem: this is very expensive, and may create a frustrated juror who will take it out on the judge, the attorney or the accused
GAS ORDER & THE NEWS MEDIA
Very, VERY controversial, because it is the outright suppression of information about a trial.
Shepherd v. Maxwell- 1967
“Neither prosecutors, counsels for the defense, the accused, witnesses, court staff nor law enforcement officers coming under jurisdiction of the court should be permitted to frustrate its function.”
As a result, judges all over the country started issuing what they called protective orders or restrictive orders, and what journalists call gag orders.
Fall unto two categories:
Those directed at participants in the trial ordering them not to reveal anything to the media. These are usually upheld when challenged on 1st amendment grounds. Those directed at the media, ordering them not to publish prejudicial information about a trial even if it’s obtained legally. These are rarely issued because they are rarely upheld.
After several years (1967-1975) with lots of gag orders aimed at the press, the United States Supreme Court heard a case and ruled on the issued of restrictive orders as prior restraints.
Nebraska Press Association v. Stuart
Erwin Simants: 75 IQ murders six member of the Kellie family. Turns himself in & confesses the next day.
His lawyer questions whether Simants had sufficient mental capacity to understand his rights, so confession was challenged. A preliminary hearing is held, and the judge orders media not to report any of the...
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