How "Trial by Media" Can Undermine the Courtroom
New research explores how media bias impacts the right to a fair trial.
Posted Aug 22, 2018
When security guard Richard Jewell discovered a suspicious-looking backpack as part of his routine search of the Centennial Olympic Park grounds prior to the 1996 Summer Olympics in Atlanta, his quick thinking helped save countless lives. After notifying police, Jewell helped evacuate the park grounds before the backpack, which contained a powerful pipe bomb, could explode. Despite the efforts of Jewell and other guards unfortunately, the bomb still detonated with one fatality and over one hundred people injured. Still, the death count was far lower than it might have otherwise been. But despite being initially hailed as a hero, Richard Jewell found himself being subjected to "trial by media" after the Atlanta Journal-Constitution reported that he was a "person of interest" in the bombing. While the FBI investigation went nowhere, Jewell continued to be roasted by the media and even became the butt of repeated jokes by comedians such as Jay Leno who referred to him as the "Una-doofus." Jewell was eventually vindicated—and he later sued numerous news agencies for their biased coverage (most of these cases were settled for unspecified amounts).
While cases of "trial by media" are hardly uncommon, especially after high-profile crimes, the long-term damage resulting from this kind of publicity is often impossible to measure. But how does this kind of media exposure affect the outcome of criminal trials? Even though the Sixth Amendment of the U.S. Constitution, along with similar laws around the world, are meant to guarantee the right of all defendants to a "fair and impartial jury," ensuring this isn't always possible. Not only are jurors expected to base their decision solely on evidence presented at trial, but the principle of impartiality means that they cannot have any prior opinions about the case they're deciding, including whether or not the defendant is guilty.
But, as previous research has demonstrated, news stories about recent crimes are typically skewed and one-sided, often assuming that the defendant is already guilty. To make matters worse, these stories frequently include prejudicial information that is rarely allowed during the actual criminal trial. This kind of evidence can include the accused's past criminal history (whether or not it's relevant to the case), sensationalized descriptions of the crime, and inflammatory statements by arresting officers or prosecutors. Add in the often emotional interviews with relatives of the deceased—most of whom openly state their belief that the accused is guilty—and it can seem like virtually everyone with an interest in the case has their minds made up before the jury is even selected.
Part of the reason this seemingly one-sided media coverage occurs is that most of the evidence presented comes from the police or prosecutors. Not only are defense attorneys reluctant to divulge important information outside of the courtroom, they are also well aware that public opinion is against them.
But what impact does this pre-trial publicity have on the actual jurors? Not surprisingly, research studies have consistently shown that potential jurors often have extremely negative attitudes toward the accused. Along with being more likely to believe that the accused is guilty before the trial even begins, they are also more likely to mistrust any evidence raised by the defense. As a result, they are much more likely to hand down a guilty verdict or recommend against mercy. But this media effect is especially important in capital cases, in which the accused is facing the death penalty. Not only are the stakes much higher for the accused than in regular criminal trials, but the publicity surrounding the case is typically much more heated and emotional.
Even though jurors in capital murder trials are supposed to be as objective as possible, this may be impossible when media coverage consistently describes the accused in the case as "evil" or a "monster" (as is sometimes the case). And, since the pretrial jury selection process usually eliminates anyone unwilling to hand down a capital verdict, the jurors who are selected are going to be much more likely to be convinced of the accused's guilt—which may mean that many jurors are ready to hand down a death sentence even before hearing any evidence.
In theory at least, judges have a wide range of solutions at their disposal that can be used to reduce this kind of bias. This includes applying for a change of venue to another location where jurors are less likely to be biased, postponing the trial until publicity has died down, or extended voir dire (questioning potential jurors more thoroughly about their personal biases). Unfortunately, these options are often hard to use, especially in emotionally charged cases where the public is determined to see justice done. And, considering that capital cases are almost always going to receive enormous amounts of negative publicity, this makes the problem of bias especially difficult to overcome.
All of which brings us to a new study published in the journal Psychology, Public Policy, and Law. Shirin Bakshay and Craig Haney of the University of California, Santa Cruz, examined the impact of pre-trial publicity in a series of capital cases in California. In particular, they focused on twenty cases that took place between 1979 and 2005 in which a change of venue application was made due to concerns over potential bias. In all, the authors examined over 1,381 news articles about the cases (92 articles per case). These articles included news stories, editorials, and obituaries as well as articles published exclusively online.
What they found was that newspaper coverage of the capital crimes remained remarkably consistent over the 26-year period of the study. Essentially, 75 percent or more of the articles studied were negative in tone including sensational descriptions of the crime, negative character statements (such as “cunning sociopath,” “walking time bomb,” “frightening and lengthy record,” “feared by his own family”, etc.). The articles also included information that wouldn't be allowed as evidence in the actual trial (i.e., prior criminal history, alleged confessions, and explicit assumptions that the defendant was guilty).
By contrast, only 19 percent of the articles attempted to balance their coverage or present evidence that might favour the defendant. Considering that these were all capital cases, only two percent of all articles argued against the use of the death penalty and usually only in very exceptional cases (such as the defendant being mentally ill, etc.). As for sources quoted in the articles, police officers and/or prosecutors were six times more likely to be cited than defense counsel or other sources favouring the defendant. Articles also devoted considerable attention to "community reaction" to the crime, including how outraged people were and how afraid of crime the offense made them.
As for the actual impact all of this negative publicity had on how each case played out, the study's results seem clear. In virtually all cases featuring extremely negative publicity towards the defendant, requests by defense counsel to have the trial venue changed were denied. And as for the actual verdict in the cases, only one of the cases in which a change of venue request was denied was acquitted. For the rest, the majority received the death sentence—with only a third receiving life sentence instead.
While Bakshay and Haney admit to some significant limitations of their study, including the small number of cases studied, their results still highlight the impact that pre-trial publicity can have on serious criminal cases. Since virtually everyone is going to base their opinion on a case from media coverage, no matter how biased, this means that "trial by media" is often going to affect the way jurors will vote. Given that almost all venue change requests examined in this study were rejected, this may imply that judges can be affected by media bias as well.
And this study doesn't even look at the role that social media is starting to play in how trials are conducted. Twitter, Facebook, and other popular platforms are already being used to spread information (and misinformation) that could seriously bias a jury—though there is still a surprising lack of research in this area.
While sensational coverage of high-profile crimes will continue to attract readers, it is important to recognize how this can undermine the concept of a fair trial. It may be comforting to assume that anyone so charged must automatically be guilty, but this is often not the case in reality. As numerous stories of people railroaded into prison solely on the basis of circumstantial evidence and media pressure have already shown, "trial by media" can be wrong. It may be more important than ever to find a way to balance the public's "right to know" with the basic rights of defendants to a fair trial.
Bakhshay, Shirin,Haney, Craig. The media’s impact on the right to a fair trial: A content analysis of pretrial publicity in capital cases. Psychology, Public Policy, and Law, Vol 24(3), Aug 2018, 326-340