"Trial by media" is undoubtedly expected in high-profile cases. We are all familiar with a criminal case that dominated the news, facing the judgment of the city, state, or even country, before facing the judgment of a jury. When this case goes to court, the "impartial jury” may have already heard information or claims that created prejudice.
In the United Kingdom, any publication covering active cases that "creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced" is prohibited. As we have learned, the 1st Amendment protects the freedom of the press. Compared to the UK, news stories here may often include the accused's past criminal history, even if it’s not relevant to the case, sensationalized descriptions of the crime, and ceaseless speculation about the case itself. But how does this media exposure affect the jurors' opinions before trial? Pretrial information being released to the public may impede a defendant's 6th Amendment right to a fair trial and impartial jury. In the age of mass media, the 6th Amendment may seem like an impossible feat. However, there are several ways to secure an impartial jury:
Change of venue - move to a location where jurors have less exposure to pretrial media coverage
Voir dire - question potential jurors to gauge potential bias
Sequestration - isolation of a jury to avoid exposure to outside influence
Postponement - delay the trial until pretrial publicity dies out
Gag order - prohibit trial participants from making “out-of-court” statements
An example of such remedy used in a highly publicized case is the 1995 Oklahoma City Bombing that resulted in the deaths of 168 people. The defendants requested a change of venue, arguing that there was substantial prejudice in Oklahoma due to extensive news coverage of the event and the media demonizing the defendants. The Judge agreed and ordered a change of venue from Oklahoma City to Denver, Colorado. Defendant McVeigh was found guilty and sentenced to death and Nichols was sentenced to life in prison.
Which method do you think is most successful in securing an impartial jury?
Comment on a high-profile case where pretrial media impacted potential or selected jurors. What did the court do to remedy that?
Footnotes:
https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1516&context=lf
https://law.jrank.org/pages/11075/Venue-Venue-Oklahoma-City-Bombing-Case.html
https://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bclawr/44_3/06_TXT.htm
The OJ Simpson case is the first highly publicized case that comes to mind. In this case, jury selection took over two months. Potential jurors had to complete a 79 page questioner as part of the Voir Dire process. The judge also put strict rules on potential jurors exposure to media, including staying out of book stores, watching cartoons with their children, and waking up to a radio alarm clock. I do believe Voir Dire is the most fair and equitable method to selecting an impartial jury only because the process is available to both parties. With both parties working to find biases in their own advantage, the opportunity is such to have a balanced jury of equal bias.
ReplyDeleteI love that we both picked the same case but found different holes! Your point about the jury being restricted from media in the form of phone calls, books, and even cartoons can be tied back into my question, how do we protect the jury and their rights while they serve their duties?
DeleteGreat point about the sequestering of jurors in the OJ trial. Eight months seems like a nightmare. I think the key is understanding that impartial does not mean unaware. It seems like an impossible task to keep those people from being exposed to any media for eight months.
DeleteThis was my EXACT thought as I was reading through the post!
DeleteI am not finding any cases that bolstered protections for jurors, but it seems that kind of sequestering is no longer the standard. In State of Sᴛᴀᴛᴇ ᴏғ Mɪɴɴᴇsᴏᴛᴀ ᴠ. Dᴇʀᴇᴋ Mɪᴄʜᴀᴇʟ Cʜᴀᴜᴠɪɴ the jury was only "partially sequestered" for four weeks - up until deliberations began when they became fully sequestered. Although the deliberations theoretically could have lasted longer, the verdict was delivered in roughly 10 hours.
The right of an impartial jury is stated in the 6th Amendment, as the Blogger mentioned, but also a part of Due Process and the Equal Protection Clause of the 14th Amendment. That being said, this right is not to be taken lightly as it could condemn the innocence and exonerate the guilty.
ReplyDeleteWhile I think a combination of methods should be used to create an impartial jury, I question which methods are detrimental.
An example of a method gone wrong would be the OJ Simpson Trial of 1995. This trial lasted more than 8 months, during which the jury was sequestered. During the trial, the jurors began dissenting their guards, claiming they gave preferential treatment to white jurors, creating racial divide leading to a resentful and stressful 8 months for the jury. This causes a "revolt" of sorts, jurors being excused, asking for removal, and an evident disagreement on the facts presented during the trial.
Here, the concern for a sequestering gone wrong could result in a mistrial or a hung jury. What would the remedy be for cases that last longer than 1 month? There are regulations for how the plaintiff and defendant need to be treated during a trial, but are there standards for how a jury needs to be treated? Should there be limits on which impartial jury method is used for securing a successful outcome in court?
Great post. I have had the professional opportunity of sitting through jury selection in different types of trials. Each 'voir dire' is captivating to me. Each of the mentioned five bullet points are valid. In high profile cases I have worked on, these elements are considered. As a trial team, we look at these elements and we analyze our jury pool options carefully. One important element worthy of discussion is the significant impact the mass media has, but also, the impact of social media too. In some instances, I believe, social media has far-reaching impact over the mass media issue. We know social medial in all its forms and I am aware of instances during jury selection, where prospective jurors will decide a case, based upon social media posts and influences, before opening statements at the trial. I could easy see a spirited class discussion about this very issue. The OJ Simpson case, criminal and civil trials, are good examples. The McVeigh trial is a GREAT example of mass media influence when applied to venue and impartial juror selection. Courts exercise every feasible step to prevent these elements from occurring. But, something usually slips through the cracks. Thanks for this post!
ReplyDeleteI'm so glad multiple people brought up the concerns with Social Media. This past couple days, my feeds have covered Gabrielle Petito's disappearance and her boyfriend, Brian Laundrie's involvement. There's endless speculation on Brian's motives, family and friends providing insight on the relationship, all attached to the opinions of social media users. Pre social media, opinions on what information was released in the news was shared by word of mouth. NOW, I can see what Joe Shmo from Indiana has to say about the case and the endless formed group pages playing at home detective. It's fascinating to read but clearly far-reaching with heavy influence.
DeleteI agree with Glen that these days social media has a much, much larger impact on how potential jurors view the case. Everyone loves sharing a hot take. As for the most useful strategies, I think both venue change and voir dire are most useful. I struggle with sequester as a successful strategy--Arin gives a good example about juror resentment in the OJ Simpson trial.
ReplyDeleteA high profile case that comes to mind for me is the Elizabeth Smart kidnapping case. When the defendant finally stood trial, they initially asked for a venue change due to the high-profile nature of the case in SLC. This was denied. I think part of the denial was the fact that nearly a decade had passed between the crime taking place and the trial--so a postponement of sorts. At that point the media frenzy had died down quite a bit and it doesn't seem unreasonable that you could find a jury pool that hadn't had as much (or any) exposure to the facts of the case.
Megan, you make a great point with the Elizabeth Smart case and how long it took for the trial to take place. I don't know the specifics of the denial of the venue change, but it makes me wonder if the trial was taking placing closer to the kidnapping of Smart, would a venue change have been approved?
DeleteI feel like it probably would have since it was SUCH a big deal around here. In that case, I wonder how far would be far enough? How sensational must a case be that a venue change doesn't make sense since EVERYONE has heard of it? Sue's point about the Ted Bundy trial is a great example. My dad was a reporter at the time and he went to FL from SLC to cover the case!!
DeleteGlen and Megan make great points. Social media is a huge source of information these days. I find myself scrolling through social media and clicking on news stories that are covering cases, or reading people's opinionated posts about those news stories and cases all the time. It's hard not to be influenced by all of the social media posts that we come across each day.
ReplyDeleteI'm with Megan in that I struggle to see sequestering as a successful strategy for maintaining an impartial jury. I also wonder how effective venue change is in certain cases. A high profile case that I thought of was the Derek Chauvin case. The murder of George Floyd grabbed the attention of people globally. It was something that virtually everybody was talking about. It seems like no matter where the venue was to be set, those selected for the jury would have quite a bit of exposure to the case and the controversial opinions of the people around them. In the Chauvin trial, the judge sequestered the jury for roughly four weeks. We are all too familiar with isolation at this point, so we know the effects it can have on our mental health. Jurors in a high profile case are already under a tremendous amount of pressure, and I think it would add even more pressure and exhaustion to be sequestered for long periods of time. I think that voir dire and postponement would be the most useful in securing an impartial jury. I also believe that venue change can be helpful in certain cases.
Sam - I totally neglected to mention this and it is a fairly recent issue too - more recent than the Simpson matter. Good call. And very valid point with the 'isolation' issue coming into play. Judges, at least in the US District Court for Utah are attempting to conduct "virtual" jury selection now. Although that is not the same as sequestration, the pandemic had definitely shaped how these issues are being operated today.
DeleteThe case that stands out to me as being influenced by mass media does so in a way that is different than most. Curtis Flowers, a 26 year-old Black man, was tried six times in connection with the murder of four people in a furniture store in Mississippi in 1996. The first three of those convictions were overturned by the Mississippi Supreme Court for prosecutorial misconduct, the next two resulted in mistrials, and the sixth trial resulted in the United States Supreme Court deciding that the Mississippi Supreme Court errored in upholding lower court decision to convict, sending it back to them.
ReplyDeleteFlowers maintained his innocence throughout the 23 years he was imprisoned and each time his case was overruled or ruled as a mistrial, he was never once released before prosecutor Doug Evans would refile the charges and Flowers would go before the same judge, which happened five of the six times. In 2018, American Public Media started season two of it’s podcast, In the Dark, which shined the spotlight on the fact that Evans offered false reasons during voir dire, using his strikes to eliminate as many, if not all, Black jurors from the jury pool. This podcast also revealed that the prosecution’s key witness, a man who claimed Flowers confessed to the crime while they were both serving time in the same prison, had lied. With the release of this wildly popular season of the podcast, people who had never heard of this case became invested in the outcome, which at the time, had not yet happened. The public was outraged that the system could fail this man this many times and that those responsible for keeping this case alive and him unjustly incarcerated for 23 years should be held accountable. Flowers was released on bail in 2019 after the United States Supreme Court ruling and Evans recused himself from the case. In 2020, the Mississippi Attorney General’s office dropped the charges and in March of 2021, the state of Mississippi was ordered to pay $500,000 for wrongful imprisonment. Then, just two weeks ago, Flowers filed a lawsuit against Evans and those who worked with him. In the Dark and American Public Media have been credited with bringing much needed attention to this case and are considered responsible for turning it around.
This case shows how many factors are at play in the attempt to secure an impartial jury. If the main players in the process purposely dance around the ethics of selection, there is no way to ensure impartiality.
DeleteThis is a great point Stephanie--I've not listened to the whole series but have listened to a couple episodes and it was just infuriating to hear about the jury selection.
DeleteThe Casey Anthony trial is one of the first high profile cases that comes to mind for me. Jury selection took far longer than they had anticipated and then ultimately the judge made the decision to select a jury pool from 100 miles away, in hopes their coverage of the case would be limited. This approach meant the jurors had to travel approximately 2 hours to the venue and were then sequestered, a part of me wonders, does that alone make jurors feel put out and already going into the case with a thought in their mind with the case.
ReplyDeleteAs others have pointed out, how long is acceptable to be sequestered and how many people can realistically be away from their work and home life obligations for an unknown number of weeks. It’s hard to say which method is the most effective, especially in high profile cases, but it seems like voir dire would be one of the more obvious choices for all parties, but how do the courts handle situations where potential jurors get creative with their answers. While we may not always know all the facts of the case, we make our judgements very quickly based on an article title alone. With access today to everyone’s opinions and news displaying at our every turn, how do we truly get an impartial jury. I don’t think there is a one size fits all and it would have to be addressed with each case and gauged by the amount of media the case received prior to trial.
Your comment on jurors feelings souring makes me think about their intentions from the beginning. I know it's ideal for jurors to come in with the best intentions, but that isn't reality. The cynic in me wonders about those who are picked and already have negative ideas about the justice system or some self-appointed vigilante thinking he is going to effect the verdict based on his own ideology. Add traveling 2 hours and being sequestered to that... oof.
DeleteI agree. We live in a different and rapidly changing world in respect to how news is shared--or perhaps we don't. Before social media, we called it the "grapevine". News stories and opinions have always been shared, and the the question of an impartial jury and a fair trial is as old as when the rules were established. Each remedy has an inherent flaw.
ReplyDelete--Change of venue: news, particularly the sensational, has always spread like wildfire
--Voir dire: prospective jurors can be untruthful, however carefully crafted questioning could mitigate this
--Sequestration: many have already commented on the challenges associated with this
--Postponement: what about the right to a speedy trial?
--Gag order: if enforced, this keeps the story for the court record from being publicized, but there are often undisclosed "leaks" that the media snatch up quickly.
The Ted Bundy story--the serial killer in the 1970s--had exploded in the news prior to any arrest being made. He waived his right for a jury trial. That begs the question, "Even with all the possible remedies, could an impartial jury have been found?"
The real question to determine an impartial jury in today's world is, "Despite all the media exposure given to this case, could you as a juror set aside your opinions and be impartial in your judgement?" If one could guarantee an honest answer to that question, then voir dire would be the obvious choice.
I've read a lot of people stating Voir Dire is likely the best attempt at an impartial jury. I've actually thought about that a lot over the years.
DeleteDuring my undergrad, I did a study abroad trip to London where we studied the English criminal justice system. One striking difference that stuck with me was that England typically does not engage in the practice of Voir Dire. I've often wondered which way is better.
Sue, as you pointed out here, jurors lie and may have ulterior motives for wanting to be on a jury. Stephanie, you bring up the case of a prosecutor using his challenges to eliminate Black people from the jury.
If we want to establish a true "jury of our peers", would it be better to just take the first 12 people? Is it really a jury of our peers if they are hand selected by attorneys?
Jacob you make a good point. What would the result be if there was a random selection jurors with minimal alternates. Would such affect how a juror responded and acted in their civic duty? Would they consider it a duty rather than a challenge? Would attorneys change the way a case was presented?
DeleteI'm curious what happens when an fair trial or impartial jury cannot be guaranteed. It would be rare to find a case in which all of these rules would be left inadequate, but there may be just a case.
ReplyDeleteTwenty years after the fact, the trial of Khalid Sheikh Mohammed, the alleged mastermind behind the 9/11 attacks, has still not happened. I'm curious how a court will be able to ensure a fair trial for the mastermind behind the most notorious terror attack in history. In a case with this much national exposure, what venue would be sufficient? What juror would not be biased? What benefit would sequestration have after 20 years of previous exposure? Also, 20 years later, it is obviously still very much in our minds on a regular basis, proving that postponement is inadequate as well. How do you try a case that school textbooks are already representing as historical facts?
As I scroll through the information available on my frequently used news websites and social media, it is hard to find something that is truly without bias, intentional or not. With that, it is hard for me to not be a little cynical about the thought of an impartial jury especially considering how much and the type of information is at our fingertips. High profile issues are bound to make it into almost everyone’s feed in one form or another. The comments of the public and leanings of the author can influence our beliefs regarding the issue. I had a conversation today that illustrated this point regarding a local disappearance. The individual was very sure the boyfriend had something to do with the disappearance even before he was named a person of interest. I admit, I have been guilty of this myself. I understand that the disappearance is not a court case yet though this illustrates how early in the process conjecture starts.
ReplyDeleteTo answer the question posed in the blog post, it is hard for me to decide which single method is most effective. I think a combination of these options may be the best decision for a court. The high profile case that came to mind is the case against Scott Peterson who was convicted of killing his wife. This case was fraught with jury issues. A gag order was used early in the process. The venue was later moved as well. A juror was released from service after speaking with the brother of the deceased and then was replaced. This case is ongoing due to the sentence being overturned because another juror did not disclose involvement in another proceeding and the sentence is under reconsideration. While this case may be out of the ordinary for the jury issues, it does illustrate that not everything is perfect, but using the options available is the best that can be done.
I agreed with everyone. We have a high profile of shooting at school, theatre, or any site with significant events in the U.S. In the statistic, more than 14 thousand people per year died from murder/shooting (source from 'Team Enough'). Unfortunately, mass media coverage of shooting incidents will fade after 2 to 6 weeks on the news and attention from the audience—many cases from survivors, families, friends, or anyone who desires to change the gun laws. Yet their cases are constantly postponed or unable to take the case because of 2nd amendment rights.
ReplyDeleteHere's an example, survivors from Marjory Stoneman Douglas High School in Florida wanted to change the law, but their case was quickly dismissed. We have sufficient evidence with this event, so it should be a fair trial. However, it is a huge conflict with the 2nd amendment right. I believe they should set a restriction with the gun law, not leave the problem.
https://www.teamenough.org/gun-violence-statistics
https://www.businessinsurance.com/article/20201214/NEWS06/912338484/Appeals-court-dismisses-Parkland-shooting-survivors%E2%80%99-lawsuit-LS-ex-rel-et-al
One of my first "trials by media" was the 2012 public trial of the Trayvon Martin murder by Zimmerman. I recalled I would listen and think and listen again. I would also be on Facebook reading other people's takes and trying to work through them. I would be in my early 20s and attempting to think without being persuaded one way or another was difficult. I do think the racial component that many people have outlined in the comments is valuable to conversation. Although the voir dire seems, to me, the most fair tactic, all these approaches seek to preserve fairness. A recent publication by Hastings Law Journal makes the case to have voir dire inquiry be a standard because "latent prejudices may be disclosed and both parties may have a better source of information about."
ReplyDeletehttps://repository.uchastings.edu/cgi/viewcontent.cgi?article=2753&context=hastings_law_journal
I think it will be more difficult as the world becomes more integrated to find a bias-free jury, rather it will be the burden of the court to evolve alongside and not get left behind.
As many have pointed out I think we have new dilemmas, perhaps more modern, but every bit as troublesome when it comes to creating unbiased juries. Two probable cases approaching the docket concern Chad and Lori Vallow Daybell, assuming they will continue to be tried separately. Rexburg, ID and the surrounding area is very sparsely populated. Finding people even moderately untouched by social media and and other forms of news about the Daybells, would be nearly impossible. Even if you move the trials to Boise, this would continuer to be problematic. I would not be surprise if, especially Chad Daybell, proposes as part of his defense, the inability of the court to find an impartial jury.
ReplyDeleteI was not aware that in the U.K. publication that could impede a trial is prohibited. I am not even sure how that would be enforced in the U.S. with the pervasive social media. The interesting thing is, with how politicized our country has become, while there is definitely biases I wonder if the leanings are still fairly split among the population to where a fair trial may be possible. For example, in the case of George Floyd, I was astounded in some of the things I heard by people and their interpretation of the news.
ReplyDeleteIn focusing on the jury, I believe voir dire really is the best option. In cases where there is mass media, this would still account for biases that go deeper than what the jury is hearing about the case. I also think that there are times where a venue change may be beneficial. Especially where the high profile case is still limited to one area, such as a city, but in another county it is not as well known.