Free Press/Fair Trial

by   |  05.29.09  |  Free Press/Fair Trial, Supplemental Information


By Charles Marler

At Inception of Investigation of Crime, Arrest and Thereafter in Pretrial Stage.

Appropriate to Disclose or Report

1. The accused’s name, age, residence, employment, marital status and similar biographical data.
2. The charge.
3. The amount of bail.
4, The identity of an biographical data concerning both complaining party and victim.
5. The identity of the investigating and arresting agency and the length of the investigation.
6. The circumstances of the arrest, including time, place, resistance if any, pursuit and weapons used.
Bar-Press Guidelines, Texas Bar-News Media Conference Committee,1970.

Inappropriate to Disclose or Report

1. The contents of any admission or confession (Rideau v. Louisiana).
2. Opinions about an accused’s reputation, guilt or innocence (Sheppard v. Maxwell).
3. Opinions concerning evidence or argument in the case.
4. Statements concerning anticipated testimony or truthfulness of prospective witnesses.
5. The results of fingerprint, polygraph, ballistic, DNA or any other laboratory test.
6. Precise description of items seized or discovered during investigation until such items are the subject of a charge.
7. Particularly on the eve of a trial, news media should exercise discretion in reporting prior criminal charges and convictions, which are in public records.
Bar-Press Guidelines, Texas Bar-News Media Conference Committee,1970.

Nature of Investigatory Records

1. In Texas, blotter and first page of offense report are open, public records, but not privileged (Houston Chronicle).
2. Warrants and official charges are public and privileged; normally, release of subject’s name should come from the charge record.

Nature of Scenes of Crime and Disaster

1. Access can be based upon common custom as in Fletcher v. Florida (1976).
2. First Amendment won’t protect intrusion or trespass Stahl v. Oklahoma, 1983, and Dietemann v. Time Inc, 1971,
3. Personal relationships with law enforcement officials play a major role in access at crime scenes.
4. Do not cross ribbons marking crime scenes (Fletcher).
5. Some states provide statutory right of access to disaster scenes, but, practically, degree of access is often left to officials at the scene.
6. In case of military air crashes, national defense concerns override First Amendment concerns.

Nature of Grand Jury Information

1. Grand juries are by law closed, and penetration of secrecy by media can lead to contempt and jail terms (Fresno 4).
2. Reception and dissemination of leaked information from a grand jury is a gray area (Watergate, Monicagate).
3. Reporter who observes firsthand an allegedly criminal act is subject to a contempt charge if he refuses to reveal to a grand jury all information about the subject before the jury.

Judges’ Restrictive Orders

1. Prohibit extrajudicial statements to the public and press by all officers of the court (Sheppard).
2. Can insulate potential witnesses from public and press (Sheppard).
3. Can prohibit cameras and recorders from pretrial hearings if state law permits; Texas still prohibits such devices (Chandler).
4. Cannot prohibit or punish information gained from other sources (Oklahoma Publishing v. District Court).
5. Can grant a continuance based upon prejudicial pretrial news until area is less inflamed, within speedy trial limits (Sheppard).
6. Can grant a change of venue based upon prejudicial pretrial news (Irvin v. Dowd, Murphy v. Florida).
7. Charge media personnel with contempt of court for disobedience of any of his orders (Sheppard).
8. Must participate in the voir dire if necessary to ensure impartiality of jurors selected (Sheppard).
9. Can sequester the jury in extreme cases; must instruct the jury about avoiding exposure to outside data (Sheppard).
10. As a last resort, the judge can declare a mistrial (Sheppard).
11. Can’t order media to refrain from publishing or broadcasting details about case (Nebraska Press Association).

Warrants and Subpoenas for Reporters

1. Judge can approve a surprise search warrant, if law enforcement officials have exhausted all other options, for information evidence deposited in a newsroom (Zurcher v. Stanford Daily).
2. A state can exempt media premises from such searches; the Texas legislature has adopted such a law.
3. Privacy Protection Act (1980) requires police to use subpoenas, not warrants, to secure journalists’ work product.
4. Generally, cooperate with subpoenas unless instructed otherwise by news superiors or to protect lives of sources.

Pre-trial Hearings Access

1. Generally, pretrial hearings are open judicial proceedings; closure is the exception.
2. A judge can upon a finding that no alternatives for the preservation of an impartial atmosphere exists close a pretrial hearing (Gannett v. DePasquale).
3. Cameras and recorders in pretrial hearings are appropriate only if state laws allow (Chandler). Texas does not permit.
4. Rules of admissibility are not completely operational in pre-trial hearings; use discretion about what to report.

During Voir Dire and Trial

Openness Is the Rule; Closure Is the Exception

1. “A trial is a public event and those who see and hear what transpires … can report it with impunity” (Craig v. Harney).
2. Trials cannot be closed just because of pervasive publicity about the cases (Richmond Newspapers v. Virginia).
3. Trials cannot be closed because of juvenile witnesses in sex-oriented cases (Globe v. Superior Court).
4. Trial can be closed only as last resort, only if no other way to ensure impartial trial (Waller v. Georgia; Perisco)

Jury-Related Problems

1. Juries do not have to be ignorant of the facts to be impartial (Murphy v. Florida).
2. Judges can participate in voir dires if they detect that attorneys are not thoroughly exploring possible pre-trial- publicity-based bias about the case (Sheppard v. Maxwell).
3. Voir dire phase of trial usually can’t be closed because of privacy concerns of prospective jurors unless judge finds substantial probability that irreparable damage to defendant’s fair trial will result (In re Greensboro News, Wisconsin ex re La Crosse Tribune v. La Crosse Circuit Court).
4. Remember that jurors are either under sequestration or limited sequestration; if it’s limited, they are instructed by the judge not to talk to anyone about the case and not to expose themselves to any news coverage about the case. Juror disobedience can be cause for contempt.
5. Reporter attempts to interview jurors before trials are over can be grounds for contempt and mistrial (Watergate case).
6. Judges cannot prohibit categorically interviews by the media of jurors after the case is over, but they can make provision for second and third request (In Re El Paso Times, In Re Express News).

Judge’s Control of Courtroom

1. The judge will administer the state’s provisions about cameras and recorders in courtrooms (Chandler v. Florida).
2. He can through special order restrict the number of media personnel in the courtroom (Sheppard v. Maxwell).
3. Judge’s pretrial publicity order probably stands.
4. Orders by him during open trial for media to refrain from publishing what is heard or seen is unconstitutional, but in the Fifth U. S. Circuit must be obeyed on the pain of contempt until quashed by appropriate authority (Dickinson).
5. If any courtroom behavior destroys defendant’s guarantees of impartiality and due process, including media behavior, judge must order a mistrial (Sheppard v. Maxwell).
6. He cannot ban media sketch artists (U.S. v. CBS).

Jail, Prison and Execution Access

1. Reporters have no more access to jails or prisons than general public (Pell v. Procunier, Saxbe v. Wash. Post).
2. Television stations repeatedly have tried unsuccessfully to gain camera access to executions.

Other Access and Publication Considerations

Guidelines for Dealing with Confidential Sources

1. Know the law applicable to confidential sources in your jurisdiction.
2. Know views of your area prosecutors, judges and bosses.
3. Try to limit your area of vulnerability with a confidential source, for a certain time or until certain events happen.
4. Do not con sources by giving them the false impression a shield law or the Constitution protects your relationship
5. If you take information in confidence, keep totally in confidence. Use only as leads. (Tell bosses if they demand because of Janet Cooke case. C.M.)
6. If you promise source confidentiality, keep totally in confidence (Cohen v. Cowles Inc.)
7. Do not keep notes that identify your sources. If you do, do not destroy them after subpoenaed.
8. If litigation is threatened, seek release from your source.
9. Unless relieved of pledge, prepare to go to jail and/or pay fine.
10. Don’t sign a contract to write a book about a trial you are covering until all litigation is completed (In Re Farber).
Source: Clark Mollenhoff except where noted.

Guidelines for Dealing with Law Enforcers

1. As a general rule, it is proper to cooperate with honest law enforcers.
2. It is proper to entertain requests from enforcers to delay stories when delays are essential or reasonable.
3. Any agreements should not interfere with press right to criticize enforcers.
4. The FA requires that news media make their own decisions about giving testimony or producing evidence [tapes, documents, notes, negatives, etc.]