gag orders, exclusionary orders, and protective orders

Transcription

GAG ORDERS, EXCLUSIONARY ORDERS,
AND PROTECTIVE ORDERS: EXPANDING
THE USE OF PREVENTIVE REMEDIES
TO SAFEGUARD A CRIMINAL
DEFENDANT'S RIGHT TO A FAIR TRIAL
Dov
APFEL*
INTRODUCTION
When a criminal investigation or trial attracts media 1 attention, a
trial judge's efforts to provide the accused with a panel of impartial
jurors may be frustrated. 2 If the media report information that is
inadmissible in. evidence, the jurors' verdict may be based on prejudice and impermissible sentiment, rather than on the evidence
proffered at trial.3 When a trial judge is asked to protect the ac* Associate, Goldman, Walker, Greenfeig & Metro, Rockville, Md.; Member, Maryland
Bar; Admitted to United States District Court for the District of Maryland and United
States Court of Appeals for the Fourth Circuit; B.A., 1976, Queens College, C.U.N.Y.; J.D.,
1979, American University, Washington College of Law.
I particularly wish to thank my wife, Sharon, whose comments and very able editorial assistance made the writing of this article possible.
1. "Media" is used throughout this article to refer to both print (newspaper and magazine)
and broadcast (radio and television) mass media.
2. In Gannett Co. v. DePasquale, 443 U.S. 368 (1979), the Court said that "[t]his Court
has long recognized that adverse publicity can endanger the ability of a defendant to receive a
fair trial." Id. at 378.
3. Patterson v. Colorado, 205 U.S. 454 (1907). Justice Holmes summarized the basic theory
of our criminal justice system as follows:
A publication likely to reach the eyes of a jury ... would tend to obstruct the
administration of justice, because even a correct conclusion is not to be reached or
helped in that way, if our system of trials is to be maintained. The theory of our
system is that conclusions to be reached in a case will be induced only by evidence
and argument in open court, and not by any outside influence, whether of private
talk or public print.
Id. at 462. Some authors have offered empirical studies to prove how potentially prejudicial
information affects prospective jurors. See Broeder, Voir Dire Examinations: An Empirical
Study, 38 S. CAL. L. REv. 503 (1965). The results of these studies are inconsistent. In Nebraska
Press Ass'n v. Stuart, 427 U.S. 539 (1976), the media referred the Court to several studies that
cast great doubt upon the conclusion that news reporting actually affects potential jurors. Brief
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cused's right to a fair trial by restricting publication or media access
to the courtroom or to the trial participants, a conflict of constitutional dimension arises. 4 While the judge has an affirmative duty to
protect the accused from the effects of prejudicial news reporting, 5
any direct restraint on the media by judicial orders may be repugnant
6
to the first amendment.
Although the existence of this constitutional" dilemma was recognized as early as 1807, 7 the Supreme Court failed to elucidate standards to guide trial judges faced with the need to mitigate the effects
of prejudicial publicity.8 As a result, lower courts made little effort
to prevent "trial by newspaper;" 9 the media were free to obtain in-
for Petitioner at 30-31. Yet, the respondent argued that several empirical studies have found
that prejudice often does result from press publicity. Brief for Respondent at 10-11. Cf. Simon,
Does the Court's Decision in Nebraska Press Association Fit the Research Evidence on the
Impact on Jurors of News Coverage, 29 STAN. L. REv. 515 (1977) (concluding that Nebraska
Press is consistent with most empirical studies).
4. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 551 (1976). A line of Supreme Court
contempt cases supports the argument that the trial judge is powerless to impose restraints
upon the press in the absence of a clear and present danger. See Wood v. Georgia, 370 U.S.
375 (1962); Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida, 328 U.S. 331 (1946);
Bridges v. California, 314 U.S. 252 (1941). The contempt cases, however, involved nonjury
trials. The free press-fair trial controversy concerns the effect of publicity on jurors, who are
more prone to outside influences than a trial judge who is constantly exposed to extraneous and
prejudicial matters inside and outside the courtroom. Jaffe, Trial by Newspaper, 40 N.Y.U. L.
REv. 511 (1965).
5. Gannett Co. v. DePasquale, 443 U.S. 368 (1979); Nebraska Press Ass'n v. Stuart, 427
U.S. 539 (1976); Sheppard v. Maxwell, 384 U.S. 333 (1966).
6. The heavy presumption against the constitutional validity of prior restraints was established in Near v. Minnesota, 283 U.S. 697 (1931) (statute that permitted local officials to restrain
further publication on the ground that matter is scandalous or defamatory held invalid as a prior
restraint). See generally Litwick, The Doctrine of Prior Restraint, 12 HARV. C.R.-C.L. L. REv.
519 (1977); Murphy, The Prior Restraint Doctrine in the Supreme Court: A Reevaluation, 51
NOTRE DAME LAw. 898 (1976); see also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)
(statute prohibited the publication of name of deceased rape victim); New York Times Co. v.
United States, 403 U.S. 713 (1971) (federal government sought to restrain publication of classified documents on Vietnam War).
7. See United States v. Burr, 25 F. Cas. 49 (C.C. Va. 1807) (No. 14,692g) (Marshall, C.J.,
trial judge) (extensive voir dire necessary to find unbiased jurors in trial of Aaron Burr due to
publicity surrounding case).
8. Although many cases recognized the harmful effects of prejudicial publicity, none of
them offered the lower courts guidance on measures they could take to combat the publicity.
See, e.g., Estes v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963); Beck
v. Washington, 369 U.S. 541 (1962); Irvin v. Dowd, 366 U.S. 717 (1961); Marshall v. United
States, 360 U.S. 310 (1959); In re Murchison, 349 U.S. 133 (1955); Stroble v. California, 343
U.S. 181 (1951).
9. Trial by newspaper arises when a substantial portion of the community from which the
jury is eventually drawn is exposed to inflammatory reports purporting to establish the defendant's guilt. People v. Moore, 42 N.Y.2d 421, 432, 366 N.E.2d 1330, 1337, 397 N.Y.S.2d 975,
982 (1977). See also Jaffe, supra note 4.
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formation and report their findings to the public. 10 Only after the
media's reports had effectively shaped the community's attitude toward the accused would the trial judge inquire whether the jurors
were willing and able to render a verdict based solely upon the evidence produced in court. 11 As a result, if a defense attorney's client
was detrimentally affected by media coverage, the attorney could obtain only such curative relief as change of venue, continuance, voir
12
dire, jury instructions, or sequestration.
It was not until 1966, in Sheppard v. Maxwell, 13 that the Supreme
Court appeared to sanction the use of preventive measures to avoid
the effects of prejudicial publicity. 14 Although the Court endorsed
several curative measures as means to counter the adverse effects of
widespread publicity on a criminal trial, 15 Justice Clark, writing
for the majority, emphasized that "the cure lies in those remedial
measures that will prevent the prejudice at its inception." 1 6 Some
defense attorneys have interpreted this statement to mean that trial
judges may use preventive measures to limit prejudicial publicity.
They argue that courts can negate the threat of potentially harmful
news coverage by issuing: (1) gag orders, which prohibit the media
from publishing potentially prejudicial information concerning pend-
10. Restraints on the press are disfavored by the courts because the press informs the public
about the competence, efficiency, judgment, courage, and behavior of the police, the prosecutor, the defense counsel, court employees, and the judge. Sheppard v. Maxwell, 384 U.S.
333 (1966); State ex rel. Dayton Newspapers Inc. v. Phillips, 46 Ohio St. 2d 457, 351 N.E.2d
127 (1976). Moreover, the Supreme Court of Ohio observed:
There is no other way the busy ordinary citizen can evaluate how the judicial system is administering justice except through the media he reads, hears or watches. A
free press is the only guarantee a citizen has of his right to know what is going on in
his government.
Id. at 467, 351 N.E.2d at 134. Accord, Phoenix Newspapers Inc. v. Superior Court, 101 Ariz.
257, 418 P.2d 594 (1966); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973); State ex
rel. Superior Court v. Sperry, 79 Wash. 2d 69, 483 P.2d 608, cert. denied, 404 U.S. 939 (1971).
11. See notes 63-65 & accompanying text infra.
12. For a well-balanced analysis of the curative mechanisms approved by the courts, see
American Bar Association Standards Relating to Fair Trial and Free Press (App. Draft 1968)
[hereinafter cited as ABA Standards]; Barist, The First Amendment and Regulation of Prejudicial Publicity-An Analysis, 36 FORDHAM L. REV. 426 (1968); Ferber, Beating Bad Press: Protecting the California Criminal Defendant from Adverse Publicity, 10 U.S.F. L. REV. 391
(1976); Ranney, Remedies for PrejudicialPublicity: A Brief Review, 21 VILL. L. REV. 819
(1976); Stanga, Judicial Protection of the Criminal Defendant Against Adverse Press Coverage,
13 WAr. & MARY L. REV. 1 (1971); Note, Fair Trial/Free Press: The Court's Dilemma, 17
WVASHBuRN L.J. 125 (1977) [hereinafter cited as The Court's Dilemma].
13. 384 U.S. 333 (1966).
14. See notes 17-19 & accompanying text infra.
15. See note 12 supra.
16. Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).
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ing criminal investigations and trials; 1 7 (2) exclusionary orders, which
limit media and public access to judicial proceedings and court records; 18 and (3) protective orders, which proscribe extrajudicial comments by attorneys, parties, court personnel, and witnesses. 19
17. See, e.g., Phoenix Newspapers Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594
(1966) (order prohibiting publication of news of pretrial hearing held invalid in murder trial as
prior restraint on open court proceedings); Sun Co. of San Bernadino v. Superior Court, 29 Cal.
App. 3d 815, 105 Cal. Rptr. 873 (1973) (order prohibiting publication of names and photographs
of prison inmates in prison murder trial held invalid because information already disclosed in
pretrial discovery); State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So. 2d 904 (Fla.
1976) (held invalid trial court's pretrial order prohibiting news media from publishing information about securities fraud case except testimony presented to a jury in open court or as public
record); Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493 (Iowa 1976)
(order restraining disclosure of jurors' identities in murder case held to be unwarranted prior
restraint); State v. Allen, 73 N.J. 132, 373 A.2d 377 (1977) (order prohibiting publication of
statement that might be inadmissible in evidence held void in felony -murder case because
more acceptable alternatives available); New York Times Co. v. Starkey, 51 A.D.2d 60, 380
N.Y.S.2d 239 (1976) (order prohibiting reporter from publishing article regarding defendant's
criminal background held unjustified); State ex rel. Superior Court v. Sperry, 79 Wash. 2d 69,
483 P.2d 608 (gag order in murder trial held void because freedom of expression more important than mere chance that prejudicial matter might reach jury), cert. denied, 404 U.S. 939
(1971).
18. See, e.g., United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978) (in trial for misuse of
public office by prominent local politician, defendant's request that proceedings concerning intercepted communications be held in camera and that record be sealed denied); Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563 (1971) (in trial for multiple homicide,
defendant's motion to close preliminary hearing denied despite extensive publicity); Commercial
Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977) (trial court lacked authority to prohibit
public and press from voir dire examination during criminal trial); Craemer v. Superior Court,
265 Cal. App. 2d 216, 71 Cal. Rptr. 193 (1968) (permanent denial of inspection of transcripts of
witnesses' testimony at grand jury proceeding unreasonable); Gannett Pacific Corp. v.
Richardson, 59 Hawaii 224, 580 P.2d 49 (1978) (high standards that must be met for closure of
preliminary hearing not met); Northwest Publications, Inc. v. Anderson, 259 N.W.2d 2,54 (Minn. 1977)
(order sealing complaints and files pertaining to murder prosecution vacated because no strong
factual basis given for order); Keene Publishing Corp. v. Keene Dist. Court, 117 N.H. 959, 380
A.2d 261 (1977) (vacated order to close probable cause hearing involving minors because insufficient basis for closure); Gannett Co. v. Mark, 54 A.D.2d 818, 387 N.Y.S.2d 336 (1976) (order
closing post-trial hearing to maintain decorum in well-publicized case where defendant had
been convicted of murder found overbroad).
19. Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975) (no comment rle for
attorneys should be narrowed to comments posing serious and imminent threat to fair trial or
that are likely to affect imposition of sentence), cert. denied, 427 U.S. 912 (1976); CBS, Inc. v.
Young, 522 F.2d 234 (6th Cir. 1975) (per curiam) (vacated order restraining various groups of
people from discussing case with press because no clear and present danger to fair administration of justice); United States v. Tijerina, 412 F.2d 661 (10th Cir.) (order forbidding disLussion
of case by defendant prior to trial), cert. denied, 396 U.S. 990 (1969); Central S.C. Ch., Soc'y of
Professional Journalists v. Martin, 431 F. Supp. 1182 (D.S.C.) (court order imposed on trial
participants to prevent discussion of matters not of public record), modified, 556 F.2d 706 (4th
Cir. 1977), cert. denied, 431 U.S. 928 (1978); United States v. Mandel, 408 F. Supp. 673 (D.
Md. 1975) (denied motion to prohibit several categories of persons from discussing case);
Younger v. Smith, 30 Cal. App. 3d 138, 106 Cal. Rptr. 225 (1973) (protective order imposing
direct restraint on media impermissible; protective order directed to district attorney justified);
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443
For ten years following the Sheppard decision, appellate courts
debated the constitutionality of gag orders, exclusionary orders, and
protective orders, 20 but the imprecise nature of the Sheppard directive made it impossible to say with certainty if, and under what circumstances, preventive measures could be used. Some of the confu-
sion generated by Sheppard abated after the Court decided Nebraska
Press Association v. Stuart.2 1 In -Nebraska Press, the Court held
that gag orders constitute a direct restraint on the press and can be
used only in extreme circumstances. 2 2 The Court, however, did not
specifically foreclose the use of less direct means of curtailing news
reporting, such as exclusionary and protective orders. 23 Nevertheless, commentators suggested that the constitutional issues considered
by the Court in Nebraska Press precluded imposition of any preven24
tive measures by the trial court.
In Gannett Co. v. DePasquale,2 5 the Court addressed the propriety
of exclusionary orders and declared that the media and the public
have no first amendment right to attend a pretrial suppression hearing. 26 The Court noted that the public trial guarantee of the sixth
amendment was created for the benefit of the accused. 27 Thus it
found that the public and media have no right of access if the judge,
the prosecutor, and the defendant agree that closed pretrial proceed28
ings are necessary to safeguard the accused's right to a fair trial.
Hamilton v. Municipal Court, 270 Cal. App. 2d 797, 76 Cal. Rptr. 168 (direct proof that
specified information will have prejudicial effect on trial not required for protective order), cert.
denied, 396 U.S. 985 (1969); Cooper v. Rockford Newspapers, Inc., 34 Ill.
App. 3d 645, 339
N.E.2d 477 (1975) (protective order against newspaper/defendant in libel suit held invalid because not drawn as narrowly as constitutionally required).
20. See, e.g., CBS Inc. v. Young, 522 F.2d 234 (6th Cir. 1975); United States v. Dickinson,
465 F.2d 496 (5th Cir. 1972); Seymour v. United States, 373 F.2dd 629 (5th Cir. 1967).
21. 427 U.S. 539 (1976).
22. Id. at 570.
23. Nebraska Press requires that the media be given extensive first amendment protection,
but the opinion does not determine the extent of this protection. First, Chief Justice Burger
explained that "(t]he County Court could not know that closure of the preliminary hearing was
an alternative open to it .... 427 U.S. at 568. Second, Justice Brennan, who took an absolute
view in regard to news reporting, implied that the trial judge could use protective orders to
constitutionally control the release of information by trial participants. Id. at 601 n.27. Trial
courts apparently will have to opt for protective orders and exclusionary orders to control prejudicial publicity. These alternatives are discussed in Parts III and IV infra.
24. See generally Fenner & Koley, The Rights of the Press and the Closed Court Criminal
Proceeding, 57 NEB. L. REv. 442 (1978). The authors discuss both the substantive and procedural constitutional rights of the press that support open-court criminal proceedings.
25. 443 U.S. 368 (1979).
26. Id. at 393.
27. Id. at 379-81.
28. Id. at 383. In Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814 (1980), however,
the Court held that trials could not be closed to the public unless there were no other alternatives available to safeguard the accused's right to a fair trial.
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Although the Gannett ruling was confined to exclusionary orders,
similar concerns regarding the first amendment rights of the press
and the public will arise when the constitutionality of protective orders is challenged. 2 9 Thus, it is probable that protective orders will
also be considered a proper measure to prevent juror exposure to
30
prejudicial publicity.
This article will provide a balanced and practical guide for the defense attorney who feels that action must be taken to safeguard his
client's right to a fair trial. Since curative and preventive measures
may be requested at each stage of litigation, it is important to be
aware of the distinctions between relief available prior to an arrest
and during the investigation, after the arrest and during the pretrial
phase, during jury selection, and during the trial. Part I provides a
historical background of the problem of prejudicial publicity and includes a brief review of the traditional curative devices that have
been employed to provide defendants with some relief against the
effects of media reporting. Parts II through IV discuss the preventive
measures that have been developed by the courts since Sheppard.
Part II explains the status of gag orders after Nebraska Press. Part III
discusses exclusionary orders and the implementation of the standards
outlined in'Gannett. Part IV concerns protective orders and Gannett's impact on their use. The societal interests and the first amendment issues that the practitioner can expect the judge to consider
when ruling on a motion for relief will be discussed throughout.
I. THE CONFLICT BETWEEN THE FIRST
AND SIXTH AMENDMENTS
TO THE CONSTITUTION
A. The Requirement of an Impartial Jury
and the Doctrine of Inherent Prejudice
The practitioner must remember that prospective jurors need not
be totally ignorant of the facts and issues involved in a criminal
29. The threshold question in the protective order controversy is whether a news reporter
has a right to ask the trial participants what they know about a particular criminal case or
investigation. See Part IV infra. For exclusionary orders, the inquiry is whether the media have
a constitutional right to be present in the courtroom when the trial participants testify, when
the court receives evidence, or when counsel present their oral arguments. See Part III infra.
In the context of either order, the media's newsgathering rights conflict with the government
interest in fair trials.
30. The Supreme Court rejected the argument that exclusionary orders, which only affect
the right to gather news, are prior restraints. Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
Thus they could be used in the proper circumstances. See discussion in Part III infra, The
Court, in addressing exclusionary orders, said that the right to gather news, a right that is
1.980]
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trial.3 1 Persons who possess some degree of knowledge about the
case will not be automatically disqualified as jurors by the trial
judge.3 2 Although the accused may be more likely to receive a fair
trial if the jurors know nothing about the case, the Supreme Court
remains unconvinced that exposure to information alone necessitates a
juror's dismissal. 33 All that is constitutionally required is that the
juror be able to state under oath that he can render a fair and impar34
tial verdict based upon the evidence presented in court.
Pursuant to this constitutional standard, the judge must consider
the effect of prejudicial news reports on the prospective juror's ability
to be impartial. 35 In most courts, affirmation of impartiality by the
venireperson is all that is needed to satisfy the constitutional requirement. 3 6 Judicial reliance on the juror's subjective affirmation is
misplaced, however, to the extent that it ignores the subconscious
influence of exposure to adverse publicity. Such publicity may render
the juror psychologically incapable of basing his decision solely on the
evidence presented at trial.
The Supreme Court has stated that a judge may be required to
disregard a juror's affirmation of impartiality in a case where atmosphere in the general community is highly inflammatory. 3 7 The defense attorney, therefore, should focus his attention on the nature of
any publicity that could effect prejudice in the general community
and ascertain the extent of actual community exposure to such publicity. 3 8 Counsel must be able to argue effectively that the nature and
extent of publicity warrants immediate action by the trial judge.
directly implicated when a protective order is issued, can be constrained when the interest is
outweighed by the defendant's right to a fair trial. Gannett Co. v. DePasquale, 443 U.S. 368
(1979).
31. Irvin v. Dowd, 366 U.S. 717, 722 (1961).
32. Murphy v. Florida, 421 U.S. 794, 799-800 (1975).
33. Id. The Supreme Court stated: "[w]e must distinguish between mere familiarity with
petitioner or his past and an actual predisposition against him, just as we have in the past
distinguished largely factual publicity from that which is invidious or inflammatory." Id. at 800
n.4.
34. Holt v. United States, 218 U.S. 245 (1910).
35. United States v. Perrotta, 553 F.2d 247 (ist Cir. 1977); Margoles v. United States, 407
F.2d 727 (7th Cir.), cert. denied, 396 U.S. 833 (1969); Hanscomb v. Meachum, 435 F. Supp.
1162 (D. Mass. 1977); State v. Osborne, 49 Ohio St. 2d 135, 359 N.E.2d 78 (1976).
36. Dobbert v. Florida, 432 U.S. 282, 302 (1977); Murphy v. Florida, 421 U.S. 794, 797
(1975); Irvin v. Dowd, 366 U.S. 717, 723 (1961).
37. Murphy v. Florida, 421 U.S. 794 (1975); Marshall v. United States, 360 U.S. 310 (1959).
Accord, United States v. Williams, 523 F.2d 1203 (5th Cir. 1975).
38. Hoppe v. State, 74 Wis. 2d 107, 246 N.W.2d 122 (1976). In Hoppe, the court noted
that:
In respect to community prejudice, we are concerned with the nature of the publicity, the degree to which the publicity permeated the community, the timing and
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Because there is no standard formula by which courts determine
whether preventive or curative relief is appropriate, trial judges exercise wide discretion in prejudicial publicity cases. Thus appellate
courts rely primarily upon the trial judge's evaluation of the particular
circumstances of each case. 3 9 It is essential, therefore, that the practitioner understand the methods by which trial courts evaluate the
effects of extensive adverse media reporting.
The most prevalent method of evaluating prejudicial publicity has
40
been to determine, at voir dire, whether actual prejudice exists.
This requires that the judge question prospective jurors to determine
whether they can render an impartial verdict despite their familiarity
with adverse publicity. 41 , The success of this approach is predicated
on the premise that the judge can rely upon the prospective juror's
responses to his questions at voir dire. Because most judges believe
that voir dire questioning is an effective means of identifying biased
jurors, practitioners have found it difficult to convince judges to take
curative action, such as continuance or change of venue, before voir
dire commences. 42 Similarly, most courts consider it premature to
take preventive action against the media until voir dire reveals that
the prospective jurors in fact have been prejudiced. 43
specificity of the coverage in relationship to the trial, the degree of state participation in the dissemination of the publicity, and the publication of information that
was not admissible at the trial.
Id. at 111, 246 N.W.2d at 126. See also Commonwealth v. Casper, 249 Pa. Super. Ct. 21, 375
A..2d 737 (1977).
39. Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976); McDonald v. State, 553
P.2d 171 (Okla. Crim. 1976). The court in McDonald stated that it is a settled rule that the trial
judge has broad discretion in the management of a trial that has been the subject of widespread
publicity, and a reviewing court will be reluctant to interfere absent a clear showing of abuse.
Id. at 182.
40. Calley v. Callaway, 519 F.2d 184, 206 (5th Cir. 1975) (en banc), cert. denied, 425 U.S.
911 (1976), exemplifies the prevailing belief that voir dire is a reliable method of testing a
juror's impartiality even in the wake of hostile and adverse prejudicial publicity. Accord, State
v. Schmid, 109 Ariz. 349, 509 P.2d 619 (1973); Austin v. State, 258 Ark. 319, 524 S.W.2d 622
(1975); People v. Hines, 28 Ill. App. 3d 976, 329 N.E.2d 903 (1975); State v. Osborne, 49 Ohio
St. 2d 135, 359 N.E.2d 78 (1976).
41. See generally Survey, Criminal Law & Procedure-Pre-trialPublicity, 8 T,x. TEcH. L.
REv. 1091, 1103-07 (1977).
42. United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (overwhelming majority of
Watergate articles were straightforward, unemotional factual accounts and did not prejudice
defendants), cert. denied, 431 U.S. 933 (1977); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975)
(en bane) (total effect of publicity was not prejudicial because many newspaper reports were
favorable to Calley), cert. denied, 425 U.S. 911 (1976).
43. See, e.g., Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563 (1971);
Northwest Publications, Inc. v. Anderson, 259 N.W.2d 254 (1977); Keene Publishing Corp. v.
Keene District Court, 117 N.H. 959, 380 A.2d 261 (1977); Williams v. Stafford, 589 P.2d 322
(Wyo. 1979). These courts evidence their reluctance to issue exclusionary orders by requiring
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Some courts, however, have recognized that a juror can be subject
to inherent prejudice if extensive pretrial publicity exposes members
of the community to information that is prejudicial and biased, or that
may not be admissible into evidence at trial. 44 These courts have
held that corrective action on the part of the trial judge is necessary
before voir dire if the accused's right to a fair trial is to be preserved.4 5 The concept of inherent prejudice is significant in that a
trial judge can presume jury prejudice without conducting a voir dire
46
examination.
The Supreme Court applied the concept of inherent prejudice in
Rideau v. Louisiana47 and held that the psychological impact of
watching an alleged criminal confess on television made it impossible
for any juror to render an impartial verdict. The Court recognized
that "any subsequent court proceeding in a community so pervasively
The
exposed to such a spectacle could be but a hollow formality." 4
Supreme Court's acknowledgment that news reporting may be inherently prejudicial is critical. Defense attorneys are now able to argue
successfully that prejudice will result if the trial judge fails to prevent
the movant to show that there are no less restrictive alternatives available to eliminate the effect
of the publicity.
44. See, e.g., Murphy v. Florida, 421 U.S. 794, 799 (1975); Sheppard v. Maxwell, 384 U.S.
333, 334 (1966); Estes v. Texas, 381 U.S. 532, 542-44 (1965); Irvin v. Dowd, 366 U.S. 717, 721
(1961); United States v. Haldeman, 559 F.2d 31, 62 (D.C. Cir. 1976), cert. denied, 431 U.S.
933 (1977); United States v. Jones, 542 F.2d 186, 193 (4th Cir.), cert. denied, 426 U.S. 922
(1976); Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968), cert. denied, 400 U.S.
1022 (1971). The finding of inherent prejudice in these cases is based upon the theory that the
community has been so saturated with prejudicial news reports that the trial judge is unable to
rely on the venireperson's objective assertion of impartiality. See, e.g., State v. Sette, 242
S.E.2d 464 (W. Va. 1978), holding that hostile sentiment throughout a county is good cause for
removing a case to another county. In Sette, a young woman was allegedly murdered by her
husband's mistress. Noting that the trial was preceded by pervasive and inflammatory publicity,
the court stated that it would have been virtually impossible for a resident of the county not to
have heard of the case and formed a tentative opinion. Id.
45. See, e.g., United States v. Williams, 568 F.2d 464 (5th Cir. 1978); People v. Manson, 61
Cal. App. 3d 102, 132 Cal. Rptr. 265 (1976); Walker v. People, 169 Colo. 467, 458 P.2d 238
(1969); State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So. 2d 904 (Fla. 1976);
Commonwealth v. Reeves, 255 Pa. Super. Ct. 409, 387 A.2d 877 (1978); State v. Trickel, 16
Wash. App. 18, 553 P.2d 139 (1976).
46. After the Supreme Court decided Sheppard, the United States Court of Appeals for the
Fifth Circuit, in Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966), stated:
The test is no longer whether prejudice found its way into the jury box at the trial
As we read the Supreme Court cases, the test is: Where outside influences
affecting the community's climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards
...to assure a fair and impartial trial.
Id. at 5.
47. 373 U.S. 723 (1963).
48. Id. at 726.
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dissemination of adverse information or to limit media access to
sources of such information.
One factor in assessing the prejudicial effect of publicity on the
community is to determine whether the news reporting has been
straightforward, informative, and factual, or whether the predQminant
tone has been accusatory and biased. 49
It also is important to con-
sider whether the media have disseminated information that is not
admissible into evidence, as it has been held that the release of such
information creates an inherently prejudicial atmosphere. 50
After the practitioner evaluates the probability that publicity will
be prejudicial, he must assess the extent of the publicity. 5 1 Because
49. Sheppard v. Maxwell, 384 U.S. 333 (1966), exemplifies the consequences of accusatory
and biased news reporting. In Sheppard, so many articles urging the conviction of Sheppard
had been disseminated in the community that the Supreme Court found it impossible for the
trial court to seat an impartial jury.
Even before the Supreme Court decided Sheppard, Professor Jaffe noted that it would be
proper for a trial court to forbid the publication of a confession, evidence about the crime, prior
criminal conduct, or any disreputable associations of the accused, until admitted at the trial, He
emphasized that this prohibition would not impede criticism of the judicial system or interfere
with the public's right to know. Jaffe, supra note 4, at 522-23.
In Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 911
(1976), however, the court of appeals was impressed by the fact that much of the news reporting
was objective. The court concluded that any possible prejudice was identified during voir dire.
Id. at 208-09.
50. Information concerning the accused's prior criminal record, for example, may not be
presented to the jury if the defendant remains silent at the trial and does not put his credibility
in issue. Release of such information by the media prior to trial is prejudicial and must be
subject to sanctions. See People v. Mordino, 58 A.D.2d 197, 396 N.Y.S.2d 737 (1977), in which
the local press gave massive coverage to stories linking the defendants to organized crime activities in the Buffalo area. The court concluded that since the news articles referred to the
defendants by name and associated them with the mafia, gangland killings, loan sharking, and
gambling activities, it was impossible for the trial judge to accept the jurors' assertions of impartiality.
51. In Sheppard v. Maxwell, 384 U.S. 333 (1966), for example, the Court viewed the presumption of impartiality as a variable that fluctuated with the extent of the community's exposure to the prejudicial publicity. In Irvin v. Dowd, 366 U.S. 717 (1961), Justice Clark concluded
that, because 90% of those examined during voir dire were inclined to believe in the accused's
guilt, the trial court could not rely upon assertions of impartiality by the others. In a case where
prejudicial press coverage extends throughout the community, therefore, the reliability of any
indicia of impartiality must be drawn into question. See Commonwealth v. Hoss, 445 Pa. 98,
283 A.2d 58 (1971) (inherent prejudice is much less a factor in those cases where the affected
area has a large population, thereby diffusing the effects of the publicity). It is necessary for
counsel to show the extent of the media's circula'lon in the community. The Supreme Court of
Ohio has relied on the large geographical area of Ohio, and the limited circulation of its media
to strike down gag orders. Cf. State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St. 2d
457, 351 N.E.2d 127 (1976); State ex rel. Beacon Journal Publishing Co. v. Kainrad, 46 Ohio St.
2d 349, 348 N.E.2d 695 (1976).
The court, however, must also consider the impact of the publicity on the community. See
United States v. Nix, 465 F.2d 90 (5th Cir.), cert. denied, 409' U.S. 1013 (1972). In Nix, although the defendant was the subject of numerous news articles, and a major news item in the
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the public is more likely to follow news reports about well-known
defendants, one factor is the defendant's prominence in in the community. 52 Similarly, if the case, by its very nature, attracts notoriety, it is likely to "invite the glare of publicity that tends to arouse
53
adverse public opinion."
Once the practitioner has assessed the necessary information and
has presented it to the judge, he must decide which preventive measure to request. The stage of the litigation will dictate which measure
is appropriate. A protective order should be sought at an early stage
of litigation. The media often obtain prejudicial information from the
trial participants. A protective order therefore may effectively prevent
public exposure to prejudicial matter. If the trial participants are
under court order, the accused's right to a fair trial can be protected.
An exclusionary order may not be necessary during the early stages of
a case unless there are to be preliminary evidentiary hearings. If,
however, the media have obtained and published prejudicial information from other sources, the practitioner must seek a gag order to
prohibit further dissemination of the prejudicial information. If such
an order is not requested the practitioner, and the defendant, must
suffer the inconvenience of a continuance, or change of venue, or the
unreliablility of voir dire examination.
The practitioner, therefore, must follow several steps to protect his
client from prejudicial publicity. The first requirement is to introduce
proof that some corrective action on the part of the court is necessary. The attention of the judge must be focused on the newspapers,
television stations, and radio stations that have access to information
New Orleans area, the court denied the claim of inherent prejudice benause the jurors came
from all over the district, including areas where, experience had shown, persons did not read
the newspapers or watch television. Id. at 94-95.
52. In United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933
(1977), a prosecution which arose from the Watergate cover-up, the court was unconvinced that
the notoriety of the crime made it necessary for the trial judge to presume prejudice. Since the
bulk of the reporting was factual, it was questionable that the populace was aroused against the
defendant. Id. at 61-62. See also Commonwealth v. Casper, 249 Pa. Super. Ct. 20, 375 A.2d
737 (1977) (defendant was chairman of the Democratic Party of Butler County).
53. Id. at 23, 375 A.2d at 741. If the community is small and the news circulation widespread, the possibility that the jurors will be prejudiced is compounded. See note 51 & accompanying text supra.
In Dobbert v. Florida, 432 U.S. 282 (1977), however, the Supreme Court was unconvinced
by a defendant's argument that the community was made aware of the charges against him. The
Court emphasized that it would not presume prejudice "in the absence of a 'trial atmosphere
utterly corrupted by press coverage.'" Id. at 303. Several courts have followed this view. See,
e.g., United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933
(1977); Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976); State v. Cameron & Bentley, 216
Kan. 644, 533 P.2d 1255 (1975); Briggs v. State, 76 Wis. 2d 313, 250 N.W.2d 12 (1977).
450
[Vol. 29:439
or have published reports about the case. Next, counsel must establish that the information is inherently prejudicial. Finally, counsel
must determine what remedy is best suited for the particular case.
B. Use of the Traditional Curative Measures
to Overcome the Effects of PrejudicialPublicity
In Sheppard v. Maxwell, 5 4 the Supreme Court recognized that
continuance, change of venue, voir dire, jury instructions, and
sequestration may remedy the effects of prejudicial publicity. 55 To
obtain such curative relief from the trial judge, however, defense
counsel must be prepared to explain why the remedy is necessary to
guarantee the accused's right to an impartial jury. Furthermore, if
counsel believes that preventive relief would be more effective, he
must be able to demonstrate that traditional curative measures are
inadequate.
1. Continuance56
The rationale underlying the grant of a continuance is that public
and media interest in a case will eventually wane and that prospective
jurors will forget the details contained in past media reports.5 7 The
practitioner must consider whether the passage of time will actually
eliminate the prejudicial effect of the publicity. The media are unlikely to ignore trials that remain newsworthy, even after a long
period of time has passed. The trial of a prominant political figure, for
example, is likely to attract attention whenever it is held. It should
also be noted that a continuance may provide little overall benefit if it
results in an indefinite postponement, for such a remedy would contravene the defendant's right to a speedy trial. 58 Witnesses and relevant evidence may not be available at a later time. The practitioner
54. 384 U.S. 333 (1966).
55. See notes 13-16 & accompanying text supra.
56. For a general discussion of continuance, see Ferber, supra note 12, at 402-03; Ranney,
supra note 12, at 829-33; Stanga, supra note 12, at 11-22; ABA Standards, supra note 12, at
119-28.
57. See, e.g., Groppi v. Wisconsin, 400 U.S. 505, 510 (1971) ("fires of prejudice will cool"
after a period of time). Some courts will not consider a request for preventive or curative relief
if there will be a sufficient passage of time to remove the psychological impact of the prejudice.
United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972). See also Murphy v. Florida, 421 U.S.
794 (1975) (7 months); Beck v. Washington, 369 U.S. 541 (1962) (9 1/2 months); Calley v.
Callaway, 519 F.2d 184 (5th Cir. 1975) (en banc) (1 year), cert. denied, 425 U.S. 911 (1976);
Rosenberg v. Mancusi, 445 F.2d 613 (2d Cir. 1971) (8 1/2 months), cert. denied, 504 U.S. 956
(1972).
58. See generally Barker v. Wingo, 407 U.S. 514 (1972).
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should evaluate all the circumstances and implications to determine
whether a continuance will serve its objective, as well as have a net
beneficial result.
2. Change of venue-5 9
Change of venue can be an effective remedy when widespread
news coverage results in community sentiment against the accused. 60 Attorneys, however, should be wary of the value of such a
remedy in highly publicized cases; if the publicity extends beyond the
county where the crime was committed, there can be no assurance
that community sentiment in adjacent areas has not been similarly
prejudiced. 6 1 Many considerations contribute to or detract from the
success of change of venue, and the courts will examine the nature
and extent of the publicity, together with other factors, when considering whether to grant a request for change of venue. 6 2
3. Voir dire 63
Even though voir dire is not always an effective means of discovering actual juror prejudice, counsel should insist that the jurors be
59. For a general discussion of change of venue, see Austin, Prejudice and Change of Venue,
68 DICK. L. REv. 401 (1964); Note, The Efficacy of a Change of Venue in Protecting a Defendant's Right to an ImpartialJury, 42 NOTRE DAME LAW. 925 (1967) [hereinafter cited as
Change of Venue]; The Court's Dilemma, supra note 12, at 128-35.
In most jurisdictions, granting a change of venue is within the discretion of the trial court.
Application for a change of venue is usually supported by affidavits, but the court may also
consider other evidence. Annot., 33 A.L.R.3d 17 (1970). In People v. Manson, 61 Cal. App. 3d
102, 132 Cal. Rptr. 265 (1976), for example, exhibition of the extensive media coverage outside
Los Angeles County persuaded the court that a change of venue would not solve the publicity
problem. The appellate court independently reviewed the evidence and upheld the trial court's
ruling. Id. at 177, 132 Cal. Rptr. at 310.
60. See Change of Venue, supra note 59, at 942; The Court's Dilemma, supra note 12, at
129.
61. See, e.g., United States v. McNally, 485 F.2d 399 (8th Cir. 1973).
62. One author summarized the relevant factors that have been considered by appellate
courts when assessing trial courts' rulings on motions for a change of venue as including:
the length of time between the arrest and the trial; the nature and extent of the
publicity (whether "inflammatory" or basically factual, whether referring to matters
which are or are not likely to be inadmissible at trial); the prosecution's responsibility for the publicity; the community atmosphere; the nature of the crime; the percentage of prospective jurors who were unaware of the publicity or who had not
become unalterably biased against the defendant; the defendant's use of at least a
substantial portion of his allotted peremptory challenges due to the amount of publicity; the number of jurors seated who had heard or seen the publicity; other precautionary or curative measures taken; and the probable efficacy of a change of
venue.
Ranney, supra note 12, at 830-31 (footnotes omitted).
63. For a general discussion of voir dire, see ABA Standards, supra note 12, at 130-38;
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THE AMERICAN UNIVERSITY LAw REVIEW
[Vol. 29:439
questioned regarding their knowledge of the case. Voir dire will only
identify jurors who realize that they have such knowledge, and who
are honest enough to admit it. If a juror admits to knowledge of the
case, even if he claims impartiality, the practitioner should point out
to the trial judge that exposure to matters of an extremely prejudicial
nature may make the juror incapable of impartiality. 6 4 Further questioning of a juror with knowledge is unnecessary; the court's failure
to prevent the release of inherently prejudicial information at an early
stage of the litigation eliminates voir dire as an effective mode of
65
identifying pretrial publicity.
6
4. Sequestration6
Sequestration is used to insulate jurors from prejudicial influences
during trial. 6 7 It is designed to prevent prejudicial publicity from
reaching jurors and can be a valuable safeguard only if there is no
juror exposure to inherently prejudicial information before voir dire.
Thus, once it becomes apparent that continuance, change of venue,
and voir dire are no longer viable alternatives because of widespread
news coverage, sequestration will not guarantee the defendant a fair
trial.
Even if news reporting has been negligible prior to jury selection,
counsel must carefully monitor the news coverage of the trial once
the jurors have been selected. If there is publicity during the trial,
counsel should request the judge to question the jurors to determine
68
whether they have been exposed to and affected by the publicity.
Stanga, supra note 12, at 1-11; The Court's Dilemma, supra note 12, at 135-38. See also notes
40-46 & accompanying text supra.
64. The objective of the voir dire is to encourage absolute frankness on the part of each
juror questioned. In a case where the publicity has been exceptionally pervasive, the trial court
must be certain that the jurors have not been influenced by the information reported by the
press. United States v. Liddy, 509 F.2d 428 (D.C. Cir. 1974). One court candidly remarked
that "it is too much to expect of human nature that a juror would volunteer, in open court,
before his fellow jurors, that he would be influenced in his verdict by a newspaper story of the
trial." Coppedge v. United States, 272 F.2d 504, 508 (D.C. Cir. 1959).
66. See 'generally Comment, Sequestration:A Possible Solution to the Free Press-FairTrial
Dilemma, 23 Am. U. L. REv. 923 (1974).
67. Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493 (Iowa 1976)
(sequestration is one of the most effective means of insulating the jurors from improper influences).
68. Some courts have developed a voir dire procedure to determine the potential effect of
prejudicial publicity during the trial. When it is brought to the attention of the trial judge that
news reports of a substantially prejudicial nature were released about the case, he has a duty to
ask the jurors whether anyone has been exposed to the publicity. Unless the publicity reaches
the level of being substantially prejudicial, however, the trial judge has no duty to individually
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If there is widespread coverage, and no indication that it will cease,
counsel should file a motion to sequester the jury. It should be
noted, however, that sequestration disrupts the business and personal
lives of the jurors, 6 9 and thus may generate animosity toward the
70
accused.
71
5. Jury instructions
Counsel should request that the court instruct the jurors not to
read reports of the case during the trial. 72 This requires that the
question the jurors. Margoles v. United States, 407 F.2d 727 (7th Cir.), cert. denied, 396 U.S.
833 (1969). Ordinarily, the judge will conduct a voir dire simply to determine whether the
jurors were in fact exposed to the publicity. United States v. Perrotta, 553 F.2d 247, 249-50 (1st
Cir. 1977). In a case of unusually pervasive publicity, however, the court should examine the
jurors individually to determine the extent of their knowledge of the case, the source of that
knowledge, and its probable impact on the juror's verdict. Silverthorne v. United States, 400
F.2d 627 (9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971). See also United States v. Palermo,
410 F.2d 468, 476 (7th Cir. 1969).
69. See People v. Dupree, 88 Misc. 2d 780, 788, 388 N.Y.S.2d 203, 209 (Sup. Ct. 1976)
("Sequestration is nothing more than a euphemism for a serious restriction of a citizen's valued
constitutional [right], that of liberty .... ).
70. See State v. Allen, 73 N.J. 132, 141-42, 373 A.2d 377, 381 (1977) (jurors resent sequestration and hold a defendant responsible for the resultant inconvenience and hardship).
71. See generally The Court's Dilemma, supra note 12, at 138-39.
72. In State ex rel. Superior Court v. Sperry, 79 Wash. 2d 69, 483 P.2d 608, cert. denied,
404 U.S. 939 (1971), the Supreme Court of Washington was satisfied that if a trial judge issues
the following instruction to the jury, it is appropriate for the judge to assume that jury members
will obey his warnings:
The instructions I am about to give you are applicable until you have been discharged as jurors in this case. Compliance with these rules during the first phase of
the trial will be difficult because of your exposure to your family and others. By
consenting to your separation, the defendants and the prosecuting attorney are entrusting to you a great responsibility. The lav requires that you merit the trust they
have placed in you.
Do not discuss this case or any criminal case or any criminal matter among yourselves or with anyone else. Do not permit anyone to discuss such subjects with you
or in your presence. The violation of this order may involve a personal penalty to
you and may result in a mistrial which would cause great injury to the parties in
thiscase.
Do not read, view or listen to any report in a newspaper, radio or television on
the subject of this trial or any other criminal trial. Do not permit anyone to read or
comment on this trial or any criminal trial to you or in your presence.
During the course of this trial, do not read, view or listen to any report in a
newspaper, radio or television on the subject of crime or sentences which result
from a criminal conviction. Similarly, do not engage in any conversation with anyone with regard to such subjects and do not permit such a conversation to be carried on in your presence.
If you are asked about the case, you should advise the person making inquiry that
you are under the court's instructions not to discuss it. When the trial is over you
will be released from this instruction and you will then be free to discuss the case
and your experience as juror.
Id. at 76-77, 483 P.2d at 612-13.
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[Vol. 29:439
judge be able to rely on the jurors' promise to comply with the
court's instructions. Assuming that the judge has properly instructed
the jurors and that they all indicate that they have complied, the
judge has no responsibility to question the jurors further. If there is
evidence of prejudicial news reporting, however, defense counsel
73
should request that the court conduct a voir dire during the trial.
A more comprehensive inquiry may be necessary if any of the jurors
admit that they know about the news reports. In such a situation, the
judge may be left with no alternative but to declare a mistrial if he
finds that the affected jurors can no longer render an impartial ver74
dict.
II.
GAG ORDERS: EVALUATING THE STANDARDS
OF NEBRASKA PRESS ASSOCIATION V. STUART
In Nlebraska Press Association v. Stuart,75 the Supreme Court recognized that trial judges must take steps to protect a criminal defendant from the effects of adverse publicity. The Court, however,
sanctioned the use of gag orders only in the most unusual circumstances. 76 This conclusion was to be expected because it is' in
accordance with the view that prior restraints are presumptively invalid. 77 Even Chief Justice Burger, who wrote that there is no need
to declare gag orders unconstitutional per se, 78 reiterated that "prior
73. Reliance by the trial judge on his admonition to the jury to refrain from reading, listening, or watching anything about the trial is not enough to assure the accused a fair
trial. United
States v. Pomponio, 517 F.2d 460, 463 (4th Cir.), cert. denied, 423 U.S. 1015 (1975). See also
United States v. Jones, 542 F.2d 186 (4th Cir.), cert. denied, 426 U.S. 922 (1976); Hanscomb v.
Meachum, 435 F. Supp. 1162 (D. Mass. 1977); State v. Keliiholokai, 58 Hawaii 356, 569 P.2d
891 (1977).
74. Cf. Sheppard v. Maxwell, 384 U.S. 334 (1965) (granted defendant's writ of habeas corpus because of jurors' awareness of massive prejudicial publicity at trial).
75. 427 U.S. 539 (1976).
76. Id. at 570. See generally Larson & Murphy, Nebraska Press Association v. Stuart-A
Prosecutor'sView of Pre-trialRestraints on the Press, 26 DE PAUL L. REV. 417 (1977); Prettyman, Nebraska Press Association v. Stuart: Have We Seen the Last of Prior Restraints on the
Reporting of Judicial Proceedings?, 20 ST. Louis U.L.J. 654 (1976); Younger, The Sheppard
Mandate Today: A Trial Judge's Perspective, 56 NEB. L. REV. 1 (1977); Symposium, Nebraska
Press Association v. Stuart, 29 STAN. L. REV. 383 (1977).
77. See note 6 supra. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), Justice
Brennan weighed the right of fair trial against the usual impermissibility of prior restraints and
concluded:
The right to a fair trial by a jury of one's peers is unquestionably one of the most
precious and sacred safe-guards enshrined in the Bill of Rights. I would hold, however, that resort to prior restraints on the freedom of the press is a constitutionally
impermissible method for enforcing that right.
Id. at 572 (Brennan, J., concurring).
78. Id. at 570.
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restraints on speech and publication are the most serious and least
tolerable infringement on First Amendment rights." 79 Nevertheless,
the Court established standards to guide trial courts in their efforts to
identify those rare circumstances in which gag orders may be appropriate. The Court stated that the trial judge must examine "(a) the
nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial
publicity; and (c) how effectively a restraining order would operate to
prevent the threatened danger." 80
A. The Nature and Extent of the Publicity
The Court in Nebraska Press gave little guidance regarding the
accused's burden of showing that unchecked news reporting will prejudice prospective jurors.8 1 The majority stated that, before a gag
order may be issued, the trial judge must find that unrestrained publicity "would so distort the views of potential jurors that 12 could not
be found who would, under proper instructions, fulfill their sworn
duty to render a just verdict exclusively on the evidence presented in
open court." 82 Justice Brennan, in his concurring opinion, based his
refusal to sanction the use of gag orders on his belief that any attempt
83
to assess the probable effect of publicity is too speculative.
79. Id. at 559.
80. Id. at 562.
81. The reason for this omission may be that' the Justices believe that gag orders can never
be used to control pretrial publicity because of the traditional impermissibility of prior restraints. At least three of the justices-Brennan, Stewart, and Marshall-considered improper
any prior restraints that did not fit within one of the narrowly defined exceptions. Id. at 572. In
addition, both Justices White and Stevens opined, after reviewing the record, that although
there was as yet no reason to formulate an absolute view, "gag orders" might never be constitutionally valid. Id. at 570 (White, J., concurring); id. at 617 (Stevens, J., concurring).
82. Id. at 569. It has been suggested that Chief Justice Burger's statement should not be
read literally. Larson & Murphy, supra note 76, at 431. If the trial court actually must demonstrate the prejudicial impact of the publicity with such certainty that 12 impartial jurors
could not be found, then it appears that there is no chance for the trial judge to satisfy this
requirement before voir dire. Id. The authors argue that the better view is that, while under
normal circumstances the trial court must find actual prejudice, there are situations where the
existence of inherent prejudice may satisfy this standard. Id. at 430-33.
83. 427 U.S. at 607. Justice Brennan stated:
A judge importuned to issue a prior restraint in the pretrial context will be unable
to predict the manner in which the potentially prejudicial information would be
published, the frequency with which it would be repeated or the emphasis it would
be given, the context in which the purpose for which it would be reported, the
scope of the audience that would be exposed to the information, or the impact,
evaluated in terms of current standards for assessing juror impartiality, the information would have on that audience.
Id. at 599-600 (Brennan, J., concurring). A close reading of Justice Brennan's opinion in New
York Times Co. v. United States, 403 U.S. 713, 724 (1971) (Brennan, J., concurring) reveals
456
[Vol. 29:439
Despite the almost insurmountable burden that appears to have
been created for the defense attorney who wishes the court to impose
a gag order, the Court's cursory discussion did not preclude all means
of meeting the burden of proving that the defendant will be denied a
fair trial. 84 There are times when a trial judge can predict that publicity will have an adverse effect on prospective jurors.8 5 For examwhy he advocates an absolutist view in the free press/fair trial cases. In New York Times, Justice
Brennan was particularly unhappy with the government's claim that the publication of the Vietnam material "could" or "might" or "may" prejudice the national interest. To a certain extent, a
trial judge must also speculate regarding the prejudicial impact of pretrial publicity. It is impossible then, according to Justice Brennan, for a trial court to meet the requisite definiteness
needed to show the inevitable, direct, and immediate harm that will result to a defendant's
right to an impartial jury, because "[iun no event may mere conclusions be sufficient." Id. at
727. Therefore, every gag order issued by a trial court will necessarily lack Justice Brennan's
requisite specificity to overcome the heavy presumption against prior restraints. See also State
v. Allen, 73 N.J. 132, 373 A.2d 377 (1977) (Pushman, J., concurring) (mere speculation that
prejudice will stem from information insufficient to issue gag order); Goodale, The Press Ungagged: The Practical Effect on Gag Order Litigation of Nebraska Press Association v. Stuart, 29
STAN. L. REv. 497 (1977).
84. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 569-70 (1976), Chief Justice Burger
emphasized:
However difficult it may be, we need not rule out the possibility of showing the
kind of threat to fair trial rights that would possess the requisite degree of certainty
to justify restraint. This Court has frequently denied that First Amendment rights
are absolute and has consistently rejected the proposition that a prior restraint can
never be employed.
Id.
One commentator has insisted that Chief Justice Burger's rejection of a flat ban on gag orders
is meaningless, in light of his firm disallowance of the prior restraint at issue in Nebraska Press.
Younger, supra note 76, at 595. See also Prettyman, supra note 76, at 656-57.
85. See notes 37-53 & accompanying text supra. To justify the issuance of a gag order under
the standards of Nebraska Press, the accused must show a clear and present danger that unchecked news reporting will prejudice his right to a fair trial. See Des Moines Register &
Tribune Co. v. Osmundson, 248 N.W.2d 493 (Iowa 1976) (no clear and present danger in
publishing jurors' names if jul3 , list in public record); New York Times Co. v. Starkey, 51
A.D.2d 60, 380 N.Y.S.2d 239 (1976) (prior restraint unconstitutional unless clearly demonstrated on record that court found danger that cannot be avoided by other means). Even
before Nebraska Press was decided, the clear-and-present-danger standard was used to test the
constitutionality of preventive measures. See, e.g., United States v. CBS, Inc., 497 F.2d 102
(5th Cir. 1974) (threat must be imminent, not just likely, and must immediately, not remotely
or probably imperil); Sun Co. of San Bernadino v. Superior Court, 29 Cal. App. 3d 815, 105
Cal. Rptr. 873 (1973) (clear and present danger means extremely serious danger and extremely
high degree of imminence).
In a series of cases, none of which involved jury trials, the Supreme Court established the
principle that a trial judge could not use the contempt power to prohibit public comment on a
pending case, unless the comments constituted a clear and present danger to a fair trial. See
Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida, 328 U.S. 331 (1946); Bridges v.
California, 314 U.S. 252 (1941). In Nebraska Press, the Court revived the "clear and present
danger" test, by applying it to gag orders that preclude the media from commenting on a
pending jury trial. For a general discussion of the status of gag orders in the period between
Sheppard and Nebraska Press, see Comment, Gagging the Press in Criminal Trials, 10 HAry.
C.R.- C.L. L. REv. 608 (1975). If a trial judge knows that the media will publish inherently
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ple, if a television station is prepared to broadcast the defendant's
confession, the judge could conclude that the broadcast would inherently result in prejudice. 8 6 The critical task, therefore, is to focus
the judge's attention on the particulars of the information to be released and to show that its dissemination will cause an inherently
prejudicial trial atmosphere.
B. Availability of Alternative Measures
Before a court issues a gag order, it must be certain that less restrictive measures will not adequately protect the defendant's right to
a fair trial.8 7 Traditional curative relief will be granted instead of a
gag order if a curative measure will overcome the prejudicial effects
of publicity. 88 The practitioner, therefore, must be able to highlight
for the court the inadequacies of each method of curative relief and to
explain why it is necessary for the judge to use a preventive measure. 8 9 A showing of inherent prejudice will overcome the defense
attorney's burden in this regard 9" and may satisfy the first two
criteria for the issuance of a gag order under Nebraska Press.91
Nebraska Press did not hold that the only alternatives to a gag
order are the traditional curative safeguards. Rather, the Court stated
that the trial court must consider less restrictive alternatives, which
arguably might include such preventive measures as exclusionary orders 92 and protective orders. 93 If counsel knows that the press has
prejudicial information, he may be willing to conclude that there is a clear and present danger
that the prospective jurors will be unable to render an impartial verdict.
86. Rideau v. Louisiana, 373 U.S. 723 (1963).
87. Nebraska Press Ass'n v. Stuart, 427 U.S. 559, 563-65. The rule that emerged from
Nebraska Press was succinctly stated in State ex rel. Beacon Journal Publishing Co. v. Kainrad,
46 Ohio St. 2d 349, 348 N.E.2d 695 (1976), where it was emphasized that "[b]efore issuing any
such [gag] order it is obligatory upon the court to hold a hearing and make a finding that all
other measures within the power of the court to insure a fair trial have been found unavailable
and deficient." Id. at 352, 348 N.E.2d at 697. Accord, Sun Co. of San Bernadino v. Superior
Court, 29 Cal. App. 3d 815, 105 Cal. Rptr. 873 (1973); Des Moines Register & Tribune Co. v.
Osmundson, 248 N.W.2d 493 (Iowa 1976); New York Times Co. v. Starkey, 51 A.D. 2d 60, 380
N.Y.S.2d 239 (1976).
88. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 563-65. Moreover, Justice Brennan directed trial courts to employ voir dire to probe filly into the effect of publicity. It is his view
that continuance or change of venue can mitigate the effects of any publicity at a particular time
or in a particular locale. Even if these devices are not effective, however, "there are the 'palliatives' of reversals on appeal and directions for a new trial." Id. at 603 (Brennan, J., concurring).
This approach can be attacked on the ground that it requires the defendant to waive his sixth
amendment rights to a speedy trial and to a trial in the community where the alleged crime was
committed.
91. See text accompanying note 80 supra.
92. For discussion of exclusionary orders, see Part III infra.
93. For discussion of protective orders, see Part IV infra.
458
[Vol. 29:439
already obtained inherently prejudicial information he may have no
choice but to seek a gag order. If only the trial participants are privy
to the information, however, the attorney may request the issuance of
a protective order. Similarly, if counsel knows that the information
will be released at a pretrial hearing, an exclusionary order may suffice.
C. Effectiveness of a Gag Order
One of the fundamental principles of due process is that a court has
no right to exercise power over a person who is not properly brought
within its jurisdiction. 94 Because the media may not be physically
present within the territorial jurisdiction of the court, particularly
when a sensational case receives nationwide press coverage, the trial
court must find other grounds for exercising jurisdiction over nonresident media and media personnel before it can issue an effective gag
order. 95 The practitioner must review local statutes and case law to
determine whether there is a long arm statute which justifies the extraterritorial exercise of jurisdiction.
This procedural difficulty is complicated by the fact that the constitutional prohibition against overbroad and vague restraints on the
exercise of first amendment liberties applies to gag orders. Unless
defense counsel limits the proposed order to specific statements and
information that may result in inherent prejudice, the order may be
found to be overly broad and be declared void. 9 6 It is equally impor-
94. See International Shoe Co. v. Washington, 326 U.S. 310 (1945); Developments in the
Law: State-CourtJurisdiction, 73 HARv. L. REv. 909 (1960); Comment, LongoArm Jurisdiction
Over Publishers:To Chill a Mocking Word, 67 COLUM. L. REv. 342 (1967); Comment, LongArm and Quasi in Rem Jurisdiction and the Fundamental Test of Fairness, 69 Mxcii. L. REV.
300 (1970); Comment, Constitutional Limitations to Long Arm Jurisdiction in Newspaper Libel
Cases, 34 U. CH. L. REv. 436 (1967).
95. In Oklahoma Publishing Co. v. District Court, 555 P.2d 1286 (Okla. 1976), rev'd on
other grounds, 430 U.S. 308 (1977), for example, the press asserted that the court had no power
to issue a gag order because it had failed to obtain in personam jurisdiction by proper service of
process. The Oklahoma Supreme Court was able to avoid deciding the merits of this argument,
because the press had entered a general appearance to vacate the order and thus was bound by
the court's decision. Id. at 1289. See generally Buckley v. New York Post Corp., 373 F.2d 175
(2d Cir. 1967); New York Times Co. v. Connor, 365 F.2d 567 (5th Cir. 1966); Curtis Publishing
Co. v. Birdsong, 360 F.2d 344 (5th Cir. 1966).
96. Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), makes it clear that the trial court
cannot prohibit the reporting of events that transpire in open court. Thus, a gag order should
be sought by defense counsel only to prevent the release of information obtained from proceedings other than those held in open court. Id. at 568 (citing Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975)). See also Craig v. Harney, 331 U.S. 367 (1947). Any gag order that restricts the publication of information obtained in open court is constitutionally overbroad.
Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966); Wood v.
1980]
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tant that the proposed gag order define the information that is not to
97
be published, so that it will survive a void-for-vagueness challenge.
In Nebraska Press, for example, the Court held that a gag order enjoining publication of information "strongly implicative" of the ac-
cused was both overbroad and vague. 98
Despite compliance with the procedural and substantive requirements for the issuance of a gag order, the defense attorney faces the
additional problem that the order may not always prevent the dissemination of prejudicial information. If the judge concludes that the
order will not prevent the information from spreading by word of
mouth, the request will probably be denied.9 9 This may be especially true in small communities, where the prospective jurors may
receive news from sources other than the media. 10 0 Generally, however, the trial court should not refuse to issue a gag order on the
ground that some people in the community may hear inherently prejudicial information from their friends and neighbors. 101
Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972); New Jersey v. Allen, 73 N.J. 132, 373 A.2d 377
(1977); State ex rel. Superior Court v. Sperry, 79 Wash. 2d 69, 483 P.2d 608, cert. denied, 404
U.S. 939 (1971). In Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977) (per
buriam), a gag order was issued restraining the press from publishing a juvenile's name or
photograph. Although the Oklahoma Supreme Court had found that the State of Oklahoma had
an interest in protecting a juvenile offender from the stigma of his misconduct, Oklahoma Publishing Co. v. District Court, 555 P.2d 1286, 1292-93 (Okla. 1976), the Supreme Court of the
United States reversed. The Court held that if the press is permitted to attend the juvenile
proceedings it is unconstitutional for the trial judge to restrain the reporting of anything that
transpired in the courtroom. 430 U.S. at 311-12. This case suggests that, in order to preserve
confidentiality in juvenile proceedings, trial courts must exclude the public and the media from
the juvenile proceedings. See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (state
may not penalize truthful publication of the identity of rape victim obtained by records reviewed during open judicial proceedings).
97. The recognized legal standard for vagueness is whether men of common intelligence
must necessarily guess at the meaning of the terms. See generally Grayned v. City of Rockford,
408 U.S. 104 (1972); Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. PA.
L. REv. 67 (1960).
98. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 568 (1976). Defense counsel should draft a
gag order that sets forth the specific matters that the media can not publish, such as a particular
item of information that is inadmissible in evidence.
99. Id. at 567.
100. The same is true for large communities where media coverage is limited to a small
percentage of the populace. In Ohio, geography, judicial organization, and press coverage are
such as to make gag orders unnecessary; alternative measures are sufficient to guarantee a fair
trial. State ex rel. Beacon Journal Publishing Co. v. Kainrad, 46 Ohio St. 2d 349, 348 N.E.2d
695 (1976). In State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St. 2d 457, 351
N.E.2d 127 (1976), the Supreme Court of Ohio also commented that change of venue is particularly useful in that state, because news coverage by even the most prominent and powerful
media sources does not extend to more than thirty percent of the counties in the state.
101. The trial judge will always consider those measures, preventive or curative, that will
result in an unbiased jury. Just as the trial judge should impose a remedy only if a significant
460
III.
[Vol. 29:439
EXCLUSIONARY ORDERS: EVALUATING THE
IMPACT OF GANNETT Co.
v.
DEPASQUALE
Nebraska Press 102 established that the media can publish information that has been disclosed during open judicial proceedings, 0 3 but
the Supreme Court's decision did not establish whether the lower
courts can avoid media coverage by excluding the public and the
press from evidentiary hearings and trials. 10 4 Many of the courts that
had considered the question were unwilling to hold that an exclusionary order is tantamount to a prior restraint and, therefore, subject to
the standards of Nebraska Press.10 5 Rather, these courts held that an
exclusionary order, unlike a gag order, does not impose restraints on
portion of prospective jurors will know of inherently prejudicial information, see note 38 &
accompanying text supra, he should refuse to apply a gag order on grounds of alternative news
sources only if a significant portion of prospective jurors will be exposed to the alternative
sources.
102. 427 U.S. 539 (1976).
103. See Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), where the Court
held that accurate newspaper reports of state judicial review commission proceedings were fully
protected under the first amendment despite the corresponding state interest in protecting the
reputation of its judges. Similarly, in Oklahoma Publishing Co. v. District Court, 430 U.S. 308
(1977), the Court. reiterated that Nebraska Press held, at a minimum, that news reporters were
entitled to publish whatever they observed during an open court proceeding. In Oklahoma
Publishing, the trial judge, relying on an Oklahoma statute which provided that all juvenile
proceedings were to be held in camera unless otherwise ordered, prohibited the press from
publishing the name or picture of a minor child associated with a juvenile hearing. The Supreme Court agreed that the judge's failure to object to the presence of the press in the courtroom during the hearing made the proceeding open to the public, and that the order was
unconstitutional. Id. at 358-59. Although the Court suggested that the trial judge could have
closed the courtroom to the public, lower courts could not rely on this case to support the
constitutionality of closure statutes, because the constitutionality of the Oklahoma statute was
not at issue. See Note, The Press andJuvenile Delinquency Hearings: A Contextual Analysis of
the Unrefined First Amendment Right of Access, 39 U. PiTT. L. REv. 121 (1977); See also note
96 supra.
104. In Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814, (1980) the Court held that
the public has a first amendment right to attend criminal trials.
105. See United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977), cert. denied, 435 U.S. 968
(1978). The court in Gurney rejected the argument that an exclusionary order is a prior restraint. Instead, the court observed that "[tihe district judge merely refused to allow the appellants to inspect documents not a matter of public record. Appellants were free to obtain whatever information they desired from any source except the district court and its supporting personnel." Id. at 1208. Similarly, in Allegrezza v. Superior Court, 47 Cal. App. 3d 948, 121 Cal.
Rptr. 245 (1975), the court held that a trial judge abused his discretion in refusing to conduct a
hearing in camera, on the voluntariness of a confession, because:
In the context of this case the rights of the press are no greater than the rights of
the public generally. And the public generally has no right to pretrial disclosure of
questionable evidence, a disclosure which might well deny to the accused the fair
and impartial trial which is his due.
Id. at 951, 121 Cal. Rptr. at 247 (citations omitted) (emphasis in original).
1980]
PRETRIAL PUBLICITY
what the media can publish; it simply cuts off the media's access to a
particular source of information. 10 6 Other courts, however, were
concerned that, without access, the media would no longer be able to
provide the public with information about the criminal justice system.
These courts held that the media have a first amendment right to
10 7
attend hearings and trials.
The lower courts' uncertainty was finally eliminated when the Supreme Court decided Gannett Co. v. DePasquale.108 In the 5-4 Gannett decision, the Supreme Court upheld the constitutionality of a
lower court order that excluded the public and the press from a pretrial evidentiary hearing. 10 9 The Court found that the strict standards
of Nebraska Press should not be applied to exclusionary orders. The
majority reasoned that exclusionary orders need not be subject to first
amendment prior restraint analysis because exclusionary orders limit
the media's access to sources of information and in no way actually
restrain media publication of information already in their possession. 110 The Court also concluded that the public and representa106. In United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977), cert. denied, 435 U.S. 968
(1978), the court emphasized that the first amendment does not protect the media against incidental burdens of newsgathering. Id. at 1211. A court order denying the media access to court
documents, such as grand jury testimony, names and addresses of jurors, transcripts of bench
conferences, exhibits not received in evidence, and written communications between the judge
and the jury, is proper when such action will secure the rights of the accused. Id. at 1209
(citing Branzburg v. Hayes, 408 U.S. 665, 684 (1972)).
107. United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978) (press' function in judicial proceedings both to publish information and to subject process to public scrutiny); Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563 (1971) (exclusionary order not justified
partially because important to democracy that public be informed).
108. 443 U.S. 368 (1979).
109. Id. at 394. Gannett upheld a decision of the New York Court of Appeals in which
the freedom of the press had been dealt a serious blow. Gannett Co. v. DePasquale, 43
N.Y.2d 370, 372 N.E.2d 544, 401 N.Y.S.2d 756 (1977), affd, 443 U.S. 368 (1979). The
conclusion of the state court that pretrial judicial proceedings are presumptively to be closed
when there is a danger of prejudicing the defendant's right to an impartial jury was unprecedented. See id. at 380, 372 N.E.2d at 550, 401 N.Y.S.2d at 762. The state court believed
that a suppression hearing served the limited purpose of enabling the trial judge to weed out
tainted evidence of guilt which was obtained in violation of the accused's constitutional
rights. Id. at 379, 372 N.E.2d at 549, 401 N.Y.S.2d at 761. Under the Supreme Court's ruling,
however, closure is contingent upon the trial court's assessment of competing societal interests.
443 U.S. at 383. Even though the Court agreed that "[tihe whole purpose of such [pretrial]
hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence
does not become known to the jury," id. at 378, the presumption is that the hearing is to be
open to the public unless all participants in the litigation consent to a closed hearing. Id. at 385.
110. Gannett Co. v. DePasquale, 443 U.S. 368, 393 (1979). Even the dissenting justices
agreed that Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), with its strict standards for gag
orders, involved an entirely different issue. Recognizing that gag orders involve direct prior
restraints on the press, Justice Blackmun, dissenting, conceded that an exclusionary order does
not restrain the publication of information already known to the press. Gannett Co. v. DePasquale, 443 U.S. at 411 (Blackmun, J., concurring in part, dissenting in part).
462
[Vol. 29:439
rives of the press do not have a sixth amendment right to an open
pretrial hearing. 1 1 Justice Stewart, writing for the Court, stated that
the public and the press could be excluded from a pretrial suppression hearing if the defendant, prosecutor, and trial judge agreed that
an open proceeding would jeopardize the defendant's right to a fair
trial. 112
Although the Court appeared to sanction the use of exclusionary
orders to close pretrial proceedings, A careful reading of Gannett reveals that the justices differed about the circumstances under which
exclusionary orders can be issued. An argument can be made that
trial judges must employ a balancing test to determine whether to
close a pretrial hearing. The Court made reference to the fact that
the closure order was consistent with the right of the press to access,
because, among other things, a hearing was held, and competing interests were balanced. 133 Justice Rehnquist, however, would read
Gannett to mean that "if the parties agree on a closed proceeding the
trial court is not required by the Sixth Amendment to advance any
reason whatsoever for declining to open a pretrial hearing or trial to
the public." 114 In contrast, Justice Powell recognized that the media
have a first amendment right to be present at a pretrial suppression
hearing, and concluded that the trial judge must hold a hearing and
111
5
make specific findings of fact before the courtroom can be closed.
As a result of the justices' failure to agree on appropriate standards
for closure, Gannett does not provide the courts or practitioners with
much guidance regarding the use of exclusionary orders. Moreover,
although the Court has expressly required a due process hearing for
many other types of controversies, 116 Gannett did not require that a.
hearing be held before an exclusionary order is issued. Thus, the
practitioner can argue that Gannett authorizes the grant of an
exclusionary order without a hearing.
111. 443 U.S. at 391.
112. Id. at 383-84. The Court has yet to rule on whether the trial judge may close a pretrial
hearing over the objections of the prosecutor. A New York case involving this question is now
pending on a petition for certioraribefore the Supreme Court. Merola v. Bell, 47 N.Y.2d 985,
393 N.E.2d 1038, 419 N.Y.S.2d 965 (1979), cert. denied, 100 S. Ct. 3055 (1980).
113. 443 U.S. at 392-93.
114. Id. at 404 (Rehnquist, J., concurring).
115. Id. at 401 (Powell, J., concurring).
116. See generally Fenner & Koley, supra note 24, at 459-60 (1978) (discussion of due process requiring adversary hearing); Note, The Right to Attend Pretrial Criminal Proceedings:
Free Press, Public Trial, and Prioritiesin Curbing PretrialPublicity, 28 SYRACUSE L. REv. 875,
893-912 (1977) [hereinafter cited as Right to Attend PretrialCriminal Proceedings].
1980]
PRETRIAL PUBLICITY
A. The State of the Media's Right to Gather News After Gannett
The media consistently have maintained that the free press clause
1 17
of the first amendment protects a reporter's right to gather news.
Commentators have also argued that the media's right to gather, publish, and circulate information should be protected. 118 In Gannett,
however, even the dissenting justices opined that "this Court heretofore has not found, and does not today find, any First Amendment
right of access to judicial or other governmental proceedings." 119
Thus the Court's decision has enormous implications regarding any
newsgathering protection afforded to the media by the first amend12 0
ment.
The approach followed by the Court in Gannett rests on established precedent. Lower courts have held that the media's news117. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 682 (1972) (seminal Supreme Court decision concerning media newsgathering rights). In Branzburg, the Court faced a conflict between
the govemmenes compelling interest in ensuring effective grand jury proceedings and the news
reporter's interest in maintaining confidential news sources. The Court concluded that only an
incidental burden on newsgathering would result if reporters, like other citizens, were required
to answer grand jury questions. Although the Court concluded that under the particular circumstances of Branzburg the media's right to gather news was outweighed by the state's compelling interest in law enforcement, it opened the door to future assertions of privilege by the
media. The Court stated that "without some protection for seeking out the news, freedom of the
press could be eviscerated." Id. at 681. The problem is that the Court failed to clarify how
much protection was necessary.
118. Fenner & Koley, supra note 24, at 487. The authors state: "Freedom of the press
necessarily means more than just the right to publish. In fact, the constitutional right to freedom of the press has three component parts: gathering, publishing, and circulating. Any part of
that right without any other would be meaningless." Id. See also Note, The Right of the Press
to Gather Information After Branzburg and Pell, 124 U. PA. L. REv. 166 (1975); Note, Constitutional Law - First Amendment - Freedom of the Press to Gather News, 20 VILL. L. REv.
189 (1974).
Several commentators have suggested that the institutional status of the press and its function
of informing the public combine to give the media a greater right of access to sources of information than the general public. See Nimmer, Is Freedom of the Press a Redundancy: What
Does it Add to Freedom of Speech?, 26 HASTINGs L.J. 639 (1975); Comment, Newsgathering:
Second-Class Right Among First Amendment Freedoms, 53 TEXAS L. REv. 1440 (1975).
119. 443 U.S. at 411. (Blackmun, J., concurring in part, dissenting in part). Justice Rehnquist, in his concurring opinion, said that neither the public nor the press have a first amendment right of access to information generated or controlled by government. Id. at 405. These
statements are consistent with other Supreme Court cases which appear to hold that the public
and the press do not have a first amendment right to gather news. See notes 123-27 & accompanying text infra. But see Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814 (1980);
notes 172-186 & accompanying text infra.
120. Where, as in Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814 (1980), the media
can show that the source of information enjoys a historical tradition of accessibility, their right to
gather news is entitled to special deference by the courts. In the absence of such a showing, the
lower courts should continue to limit newsgathering rights where there are other legitimate
interests at stake.
464
[Vol. 29:439
gathering rights are not entitled to the full range of first amendment
protection. 12 1 The prevailing view is that the public and the press
share the same right of access to sources of information. 12 2 This
analysis led to the Court's conclusion in Pell v. Procunier123 and
Saxbe v. Washington Post Co.'124 that one way to determine whether
the media have a right to interview designated prison inmates is to
examine the extent of the public's right of access. 125 Because "the
First Amendment does not guarantee the press a constitutional right
of special access not available to the public generally ... ," 128 the
Court concluded that the state has no obligation to grant the press
interviews with inmates when others cannot make similar demands.' 2 7 Thus the conclusion of the Supreme Court in Gannett,
that the newsgathering rights of the press could be curtailed because
the government had a compelling interest in fair trials, is consistent
with the Court's reasoning in Pell and Saxbe.
121. In several recent cases, courts have held that the liberty of the press is only collaterally
and indirectly involved when the judge issues an exclusionary order. See United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977), cert. denied, 435 U.S. 968 (1978); Gannett Pacific Corp. v.
Richardson, 59 Hawaii 224, 580 P.2d 49 (1978); Philadelphia Newspapers, Inc. v. Jerome, 478
Pa. 484, 387 A.2d 425 (1978). The same reasoning applies when the trial judge denies the media
access to documents and transcripts. Compare Honolulu Advertiser, Inc. v. Takao, 59 Hawaii
237, 580 P.2d 58 (1978) (order sealing hearing transcript was not for purpose of preventing
media from publishing the information), with Northwest Publications, Inc. v. Anderson, 259
N.W.2d 254 (Minn. 1977) (order sealing files generally improper, but may be used in rare and
extraordinary circumstances). See also note 105 supra.
122. In United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978), the court, while suggesting
that the sixth amendment protected the media's interest in open court proceedings, adopted a
narrow view of the media's first amendment right to gather news. The court held that news
reporters must tolerate the same restrictions on access to judicial proceedings as are imposed on
the public. Id. at 681. The court, however, imposed extremely strict standards for closure on
trial judges. Exclusion must be tested by a standard of "strict and inescapable necessity." Id. at
854 (quoting Bennett v. Rundle, 419 F.2d 599, 607 (3d Cir. 1969)). See also Houchins v.
KQED, Inc., 438 U.S. 1 (1979) (right to gather news is not basis for claim that first amendment
compels others to give information).
123. 417 U.S. 817 (1974).
124. 417 U.S. 843 (1974).
125. Pell v. Procunier, 417 U.S. 817, 833-34 (1974); Saxbe v. Washington Post Co., 417 U.S.
843, 850 (1974). See generally Note, The Public's Right to Know: Pell v. Procunier and Saxbe v.
Washington Post Co., 2 HASTINCS CONST. L.Q. 829 (1975) [hereinafter cited as Public's Right
to Know].
126. Pell v. Procunier, 417 U.S. 817, 833 (1974) (quoting Branzburg v. Hayes, 408 U.S. 665,
684-85 (1972)). But see note 118 & accompanying text supra.
127. Pell v. Procunier, 417 U.S. 817, 834 (1974). See Garrett v. Estelle, 556 F.2d 1274 (5th
Cir. 1977). The court in Garrett stated that "Pell and Saxbe make clear . . . that the right to
gather news, protected by the first amendment, does not impose upon government the allirmative duty to make available to journalists sources of information not available to members of the
public generally." Id. at 1279. See also Note, Broadcasters'News-Gathering Rights Under the
First Amendment: Garrett v. Estelle, 63 IowA L. lR.v. 724 (1978).
1980]
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The decisions in Pell and Saxbe appear to disregard the important
societal interest in receiving information about criminal proceedings
because the state is able to cut off the media's sources of information
if it imposes similar limitations on the general public.' 2 8 The Court
did acknowledge in Gannett, however, that newsgathering should not
be curtailed absent a substantial governmental interest. 129 In requesting an exclusionary order that will limit access by the press, the
practitioner should be prepared to show that: (1) the order in question furthers an important or substantial government interest; and (2)
the limitation is no greater than is necessary to protect that government interest. 130
Justice Powell criticized the majority in Saxbe v. Washington Post Co., 417 U.S. 843 (1974),
for its failure to afford proper weight to the public's right to receive information through the
press. Id. at 883 (Powell, J., dissenting). Justice Powell emphasized that personal interviews
are critical to effectuate proper news reporting in the prison context. Id. at 872. He was impressed with the extensive evidentiary hearings conducted by the lower court and its conclusion
that accurate and effective news reporting depended upon the availability of interviews with
designated inmates. Id. at 869-70. One author argues that Justice Powell's dissent is more
consistent with the first amendment cases that have required more protection for the general
public's right to receive information. See Public's Right to Know, supra note 124, at 840-47.
Justice Powell's dissent in Saxbe is consistent with his later concurrence in Gannett where he
was the only justice to find a first amendment right of access to criminal trials for the press and
the public. Gannett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (Powell, J., concurring).
128. This societal interest was recognized in Richmond Newspapers, Inc. v. Virginia, 100 S.
Ct. 2814, 2830 (1980) (Stevens, J., concurring). In its purest form, the right to gather news is
premised on the theory that media access to all sources of information is necessary for the press
to fulfill its classic function of informing the public. In Cox Broadcasting Corp. v. Cohn, 420
U.S. 469 (1975), the Supreme Court described this relationship:
In the first place, in a society in which each individual has but limited time and
resources with which to observe at first hand the operations of his government, he
relies necessarily upon the press to bring to him in convenient.form the facts of
those operations. Great responsibility is accordingly placed upon the news media to
report fully and accurately the proceedings of government, and official records and
documents open to the public are the basic data of government operations. Without
the information provided by the press most of us and many of our representatives
would be unable to vote intelligently or to register opinions on the administration of
government generally. With respect to judicial proceedings in particular, the function of the press seems to guarantee the fairness of trials and to bring to bear the
beneficial effects of public scrutiny upon the administration of justice.
Id. at 491-92. The media, therefore, has had some support from the Supreme Court for their
argument that information withheld by the trial judge, through protective orders or exclusionary
orders, is of legitimate public concern and within the ambit of the first amendment right to
gather news.
It has been noted that "[tihe press exists to provide the widest possible dissemination of
information possible to the public. In this respect, the press as an institution is protected by the
First Amendment. This institution, however, exists to serve the people." Larson & Murphy,
supra note 76, at 441. The authors, however, conclude that the responsibility of serving the
people does not entail influencing the fair administration of justice so that a guilty man goes
free. Id.
129. Gannet Co. v. DePasquale, 443 U.S. 368, 383 (1979).
130. Procunier v. Martinez, 416 U.S. 396, 413 (1974).
466
[Vol. 29:439
Defense counsel, therefore, should not presume that Gannett completely eliminates all first amendment objections to exclusionary or-
ders. 13 1 At least one concurring Justice was persuaded that representatives of the public and the press are entitled to a hearing on
the question of their exclusion.132 The Court in Gannett emphasized
that the trial judge gave full consideration to the constitutional rights
133
of the press and properly assessed all competing societal interests.
Thus, defense counsel should be prepared to show that closure is
necessary, under all relevant circumstances, to protect the accused's
right to a fair, orderly, prompt, and final disposition of the criminal
charges.
13 4
B. The Sixth Amendment Public Trial Guarantee After Gannett
1. Pretrialjudicial proceedings
The most controversial issue considered in Gannett was the scope
of the sixth amendment guarantee of a public trial.' 3 5 Literally, the
sixth amendment protects the accused's right to a fair trial,' 3 6 but
131. See Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814 (1980) (holding that a trial
cannot be closed absent an overriding interest and a finding that less onerous alternatives would
be inadequate).
133. 443 U.S. at 392-93. Justice Stewart was particularly impressed with the fact that the
media was given a copy of the transcript of the suppression hearing. In his opinion he stated
that the press "had the opportunity to inform the public of the details of the pretrial hearing
accurately and completely." Id. at 393. He also emphasized that the judge held a hearing at
which counsel for Gannett "was given an opportunity to be heard . . . [and] to voice the
petitioner's objections to closure of the pretrial hearing." Id. at 392.
134. In Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814 (1980), Justice Brennan
found that each case in which a right of access is claimed must be decided on its own facts. Id.
at 2834. What is crucial, according to Justice Brennan, is whether the source of information has
a historical tradition of accessibility. Id.
135. The Court of Appeals for the Third Circuit recognized this guarantee in United States v.
Cianfrani, 573 F.2d 835 (3d Cir. 1978). The court concluded that, although the press had no
first amendment right to demand access to judicial proceedings, trial judges should not issue
closure orders because the sixth amendment protects the public interest in open trials and
hearings. Id. at 848. See generally, Right to Attend PretrialCriminal Proceedings, supra note
116, at 893-912.
The sixth amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defense.
U.S. CONST. amend. VI.
136. See U.S. CONST. amend. VI. In Re Oliver, 333 U.S. 257 (1948), effectively demonstrates the traditional concern for the accused's sixth amendment rights. The Court stresses
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defense counsel would be hard-pressed to argue that, although the
public might have no right to attend trials, there is no societal in37
terest in public trials..
A second issue discussed in Gannett, is whether the term "public
trial" encompasses a pretrial hearing.13 8 Some courts have concluded
that a pretrial suppression hearing is a "public trial," 13 9 while others
have been unwilling to extend the public trial guarantee to pretrial
proceedings.14 0 As a result, the latter have held that the public can
be denied access to voir dire,' 4 ' depositions, 142 and all other pretrial
proceedings. 1 4 3 These courts have emphasized that pretrial suppression hearings are designed to enable the trial judge to rule on the
admissibility of evidence and to sort out untrustworthy information
that could prejudice the jurors.'"4 Because these courts have refused
that the sixth amendment protects the accused from secret trials and the abuse of judicial
power. Id. at 270 n.25.
137. See United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978) (law strongly favors presumption that all adjudication proceedings are open to the public due to fifth and sixth amendments); Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563 (1971) (interests of
public deeply involved in administration of law); State ex rel. Dayton Newspapers, Inc. v.
Phillips, 46 Ohio St. 2d 457, 351 N.E.2d 127 (1976) (public is entitled to know what is transpiring).
138. 443 U.S. 368, 387-91 (1979).
139. See State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St. 2d 457, 351 N.E.2d
127 (1976). The Supreme Court of Ohio, concluding that exclusionary orders closing pretrial
hearings are unconstitutional per se under both federal and state law, refused to exempt pretrial
hearings from the scope of the sixth amendment public trial guarantee because:
[A) hearing on a motion to suppress evidence is a sensitive and extremely important
proceeding. The issues in such a hearing are often the competence, efficiency,
judgment, courage and behavior of the police, the prosecutor, the defense counsel,
the court employees and the judge. Because of corruption or malice, a secret judicial proceeding may be and has been used to railroad accused persons charged with
crime. Secret proceedings may be used to cover up for incompetent and corrupt
police, prosecutors and judges, and the influence of corrupt politicians on the judicial system.
Id. at 466-67, 351 N.E.2d at 133-34. Accord, United States v. Cianfrani, 573 F.2d 835 (3d Cir.
1978); United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969); Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977) (members of the public have a right to hear
the voir dire examination of individual jurors). Cf. United States v. Clark, 475 F.2d 240 (2d Cir.
1973) (suppression hearing is as important as the trial itself).
140. Gannett Co. v. DePasquale, 43 N.Y.2d 370, 372 N.E.2d 544, 401 N.Y.S.2d 756 (1977),
aff'd, 443 U.S. 363 (1979); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425
(1978).
141. See, e.g., United States v. Hearst, 412 F. Supp. 873 (N.D. Cal. 1976) (public attendance at voir dire proceeding can be restricted when full and complete record is made available
after jury is sequestered).
142. See, e.g., Times Newspapers, Ltd. v. McDonnell Douglas Corp., 387 F. Supp. 189
(C.D. Cal. 1974) (public has no right to attend deposition proceeding which is not part of the
trial).
144. See Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978).
468
[Vol. 29:439
to extend the public trial guarantee to such hearings, 145 they have
effectively prevented challenges to exclusionary orders on sixth
amendment grounds.
The Court in Gannett found that the public has no constitutional
right to attend a pretrial proceeding. 14 6 The Court acknowledged
that the purpose of pretrial suppression hearings "is to screen out
unreliable or illegally obtained evidence and insure that this evidence
does not become known to the jury."1 47 The Court further stated
that it was not unusual at common law for courts to close pretrial
proceedings to protect the rights of the accused. 148 Persuaded by
such precedent, and recognizing that closure is considered one of the
most effective methods to ensure a fair trial, the Court concluded that
149
closure could be a necessary constitutional measure of protection.
Defense attorneys, therefore, can rely on Gannett as authority to
support the closure of pretrial hearings, even though it remains unclear what burden of proof must be overcome before the trial judge
will issue an exclusionary order. The trial judge's attention should be
directed to the Court's remark that, in an adversary system of criminal justice, "the public interest [in the administration of justice] is
fully protected -by the participant in the litigation." ' 50 This suggests
that the media cannot demand access to a pretrial hearing when the
accused, the prosecutor, and the judge agree that closure is necessary
to safeguard the accused's right to a fair trial.' 5 1 The implication is
that the prosecutor and the judge represent the interests of the public and, if they agree with the accused that closure is necessary, that
152
members of the public have no standing to protest.
145. See Gannett Co. v. DePasquale, 443 U.S. at 396 (Burger, C.J., concurring). The Chief
Justice remarked that "[bly definition a hearing on a motion before trial to suppress evidence is
not a trial; it is a pretrial bearing." Id. at 394 (emphasis in original).
146. Id. at 387-91.
147. Id. at 378.
148. Id. at 387-91.
149. The Court conceded that pretrial publicity could "influence public opinion against a
defendant and inform potential jurors of inculpatory information wholly inadmissable at the
actual trial." Id. at 378. Closure is necessary to avoid this danger and to protect the accused's
right to a fair trial.
150. Id. at 384.
151. In Detroit Free Press, Inc. v. Macomb Circuit Judge, 405 Mich. 544, 275 N.W.2d 482
(1979), however, the Supreme Court of Michigan held that the trial judge could not exclude the
media and the public from the courtroom simply beciuse the accused requested a closure order
and the prosecutor failed to object. Applying Michigan law, the court stated that the trial judge
must hold a hearing to determine whether justification for an exclusionary order exists and
whether less restrictive alternatives are available.
152. See Gannett Co. v. DePasquale, 443 U.S. 368, 384 n.12 (1979). The Court in Gannett
recognized that:
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It is important to note that Gannett does not state that the trial
judge can close pretrial proceedings without making specific findings.
Rather, the Court recognizes that there is a strong societal interest in
having open criminal proceedings. 153 Apparently more than a conclusory statement by the accused must be made before the trial judge
can issue an exclusionary order. 154 This may lead some lower courts
to rely on common law rules, which have been developed to test the
validity of exclusionary orders. 155 In United States ex rel. Lloyd v.
Vincent, 156 the Second Circuit summarized the circumstances under
which public access may be limited:
[T]he right to a public trial must be balanced against other interests which might justify the closing of the courtroom to the public. Thus, the exclusion of the public in whole or in part has been
found constitutionally acceptable where closed proceedings were
deemed necessary to preserve order, to protect the defendant or
witnesses, or to maintain the confidentiality of certain information. 157
Similarly, another court reasoned that "the right of the press freely to
gather and report the news must be accommodated so far as is hu-
The responsibility of the prosecutor as a representative of the public. . . encompasses a duty to protect the societal interest in an open trial. But this responsibility
also requires him to be sensitive to the due process rights of a defendant to a fair
trial. A fortiori, the trial judge has the same dual obligation.
Id.
153. Id. at 383.
154. Id. The Court stated: "While the Sixth Amendment guarantees to a defendant in a
criminal case the right to a public trial, it does not guarantee the right to compel a private
trial." Id.
155. Prior to Gannett, several courts had already established standards to test the propriety
of issuing exclusionary orders. Generally, the trial judge cannot eject the public from the courtroom absent a finding that: (1) there is a factual basis to support the claim by the accused that
prejudice will result if the media has access to the information discussed during the hearing;
and (2) the defendant's right to a fair trial cannot be adequately protected by alternative means.
Phoenix Newspapers, Inc. v. Jennings, 107 Ariz. 557, 490 P.2d 563 (1971); Star Journal Publishing Corp. v. County Court, 197 Colo. 234, 591 P.2d 1028 (1979); Northwest Publications, Inc.
v. Anderson, 259 N.W.2d 254 (Minn. 1977); Keene Publishing Corp. v. Keene District Court,
380 A.2d 261 (N.H. 1977); Williams v. Stafford, 589 P.2d 322 (Wyo. 1979). See also ABA
Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, Standard 8-3.2 (Second Edition Tentative Draft, 1978).
156. 520 F.2d 1272 (2d Cir.), cert. denied, 423 U.S. 937 (1975).
157. Id. at 1274. The defendant's interest in protecting his right to an impartial jury is of
sufficient weight to overcome the public interest favoring open judicial proceedings. The court
in Vincent cited Sheppard v. Maxwell, 384 U.S. 333 (1966), as one case supporting restrictions
on the press during a trial. The question that remains unresolved is what level of publicity will
trigger the judge's duty to take protective action.
470
[Vol. 29:439
manly possible, consistent with the court's duty jealously to preserve
1 58
a defendant's right to a fair trial by an impartial jury."
Defense counsel should be prepared to provide the judge with
workable standards to test the propriety of a closure order. 1 59 Certainly, the prosecutor and the judge will not always agree that the
requested order is necessary, and many judges will desire to provide
the media an opportunity to be heard whenever an exclusionary order
is being considered.' 6 0 In this regard, Justice Powell's concurring
opinion in Gannett offers a fair test. 16 1 He suggested that a hearing
be held so that all interested parties can voice their objections to, or
support of, such an order. 162 The moving party would bear the initial burden of showing that "the fairness of [the] trial likely will be
prejudiced by public access to the proceedings." 163 Defense counsel's primary objective in such a hearing is to show that an open trial
would provide the media with access to prejudicial information that is
inadmissible in evidence. Because exclusionary orders are not prior
restraints, however, it should not be necessary for counsel to show
that inherently prejudicial information would be released. 164 In158. United States v. Hearst, 412 F. Supp. 873, 876 (N.D. Cal. 1976).
159. United States v. Cianfrani, 573 F.2d 835 (3d. Cir. 1978). The Third Circuit would require trial courts to rely on a "strict and inescapable necessity" test for a closure order. Id. at
854. This theory is an outgrowth of the courts' decision to reject the sixth amendment analysis
adopted by the New York Court of Appeals in Gannett. See note 110 supra. When Gannett was
affirmed by the Supreme Court, the reasoning of Cianfrani was found to be unpersuasive.
Justice Stewart found that Cianfrbni departed from the plain meaning of the sixth amendment.
He asserted that Cianfrani is the only opinion to ever hold that the sixth and fourteenth
amendments "confer upon members of the public a right of access to a criminal trial." 443 U.S.
368, 381-82 n.9 (1979).
161. 443 U.S. 368, 397 (1979).
162. In contrast, Justice Rehnquist suggests that "if the parties agree on a closed proceeding
the trial court is not required by the Sixth Amendment to advance any reason whatsoever for
declining to open a pretrial hearing or trial to the public." Id. at 404 (Rehnquist, J., concurring).
163. Id. at 401.
164. Defense counsel should note that some courts have exercised caution in expanding their
use of exclusionary orders. In State v. Joyce, 160 N.J. Super. 419, 390 A.2d 151 (1978), for
example, the court was reluctant to conclude that the presence of reporters during a preliminary suppression hearing would result in prejudice. This skepticism about the effect of publicity
influenced the court to adopt a strict procedural standard similar to the one favored by the
Supreme Court in Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976). The New Jersey court
said that before the trial judge can even consider excluding the media from the courtroom, the
defendant must demonstrate that the following facts will definitely occur: (1) that the information which the news media will actually disseminate will be read by prospective jurors or be
heard on radio or television; (2) that the information disseminated will be prejudicial; and (3)
that the prejudicial information will influence the jurors to such an extent that they will be
unable to render an impartial verdict. 160 N.J. Super. at 428, 390 A.2d at 155. See also Gannett Pacific Corp. v. Richardson, 59 Hawaii 224, 580 P.2d 49 (1978) (concluding that not only
PRETRIAL PUBLICITY
stead, defense counsel would satisfy his burden by demonstrating that
there is a substantial likelihood that unreliable, untrustworthy, or inflammatory matter will reach prospective jurors. 165 When defense
counsel has satisfied this burden, members of the public and the
press will "have the responsibility of showing to the court's satisfaceliminate the
tion that alternative procedures are available that would
166
dangers shown by the defendant and the State."
2. Trials
The most obvious difficulty with the decision in Gannett is the
Court's failure to make clear whether, without more, agreement,
among the trial judge and the parties is a sufficient basis to exclude
the public from a criminal trial. 16 7 Dicta in Gannett supported the
proposition that such a result should be regarded as constitutionally
permissible. 168 This explains the more generous readings of Gannett
by many courts that sanctioned the use of an exclusionary order to
16 9
close the courtroom during trial.
The idea that Gannett supported the closure of criminal trials,
however, suffers from two prominent defects. One obvious difficulty
is that it is inconsistent with the concurring opinion of Chief Justice
Burger who made a clear distinction between trials and pretrial pro-
must the trial judge follow the procedure established in Joyce, but he also must consider the
availability of curative safeguards). Such standards were not required by the Supreme Court in
Gannett. The trial judge is not bound by the Nebraska Press standard, and as a result, should
not have to make predictions about the actual effect of the publicity.
165. See United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977), cert. denied, 435 U.S. 968
(1978); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978).
166. Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979). To strengthen his position, defense counsel should highlight all of the defects inherent in each of the traditional curative
safeguards before the opposing party makes its showing. See notes 55-74 & accompanying text
supra.
167. In the past, the lower courts have been primarily concerned with the validity of
exclusionary orders that denied public access to pretrial hearings. See generally Fenner &
Koley, supra note 23; Note, Trial Secrecy and the First Amendment Right of Public Access to
Judicial Proceedings, 91 HARV. L. REV. 1899 (1978); The Right to Attend Pretrial Criminal
Proceedings, supra note 116.
168. Gannett Co. v. DePasquale, 443 U.S. 368, 379-84 (1979). The Court has never concluded that the public could be excluded from a criminal trial; however, it has come close. In
In re Oliver, 333 U.S. 257 (1948), the Court found that the sixth amendment public trial guarantee was created for the benefit of the accused. It did not, however, rule that the public could
be excluded from a criminal trial at the request of the defendant.
169. According to Court Watch Summary, NEWS MEDIA & L., Nov.-Dec., 1979, at 18-23,
eighteen requests had been made to close trials between July 2, 1979 and December 15, 1979.
Of these, six were granted, nine were denied, two were withdrawn, and one was voided. Id.
472
[Vol. 29:439
ceedings. 170 Second, it ignores the scholarly efforts of the justices to
17 1
identify the historical importance of open trials.
It is not surprising, therefore, that Gannett was recently distinguished by the Supreme Court in Richmond Newspapers, Inc. v.
Virginia.172 There the Court found it unjustifiable for a trial court to
close a criminal trial without first considering whether there were less
drastic means available to ensure a fair trial. 17 3 The justices made
clear that the holding in Gannett is to be limited to pretrial proceedings. 17 4 Chief Justice Burger, announcing the judgment of the
Court, insisted that, "[i]n guaranteeing freedoms such as those of
speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as to give meaning to those
75
explicit guarantees." 1
By extending constitutional protection to the public's right to attend trials, this decision raises new questions regarding the scope of
the right to gather news. For Justice Stevens, Richmond Newspapers
is a watershed. He perceives the decision as providing added protection to the media's right of access to important information. He concludes, for example, that public access to information cannot be ab1 76
ridged without legitimate justification.
It is not clear, however, that a majority of the Court shares Justice
Stevens' expansive view. Chief Justice Burger and Justices Brennan
and Blackmun, for instance, placed heavy emphasis on the historical
role of open trials. 177 Justice Brennan, in particular, did not recognize a broad constitutional right to gather news. He said that "[a]n
assertion of the prerogative to gather information must accordingly be
assayed by considering the information sought and the opposing interests invaded."' 178 Chief Justice Burger, who specifically stated
that the right to gather information was at stake in Richmond Newspapers, cited even more convincing reasons to support the Court's
ruling. The Chief Justice recognized that access to criminal trials
170. Gannett Co. v. DePasquale, 443 U.S. at 394-97 (Burger, C.J., concurring).
171. This rule became known as the open-door policy. For an excellent discussion of its
development and application, see Gannett Co. v. DePasquale, 443 U.S. 368, 411-39 (1979)
(Blackmun, J., concurring in part, dissenting in part).
172. 100 S. Ct. 2814 (1980).
173. Id. at 2829-30.
174. Id. at 2821 (Burger, C.J., announcing the judgment); Id. at 2832 (Brennan, J., concurring in the judgment); Id. at 2842 (Blackmun, J.,concurring in the judgment).
175. Id. at 2827.
176. Id. at 2830-31.
177. Id. at 2821-26 (Burger, C.J., announcing the judgment); Id. at 2834-36 (Brennan, J.,
concurring); Id. at 2841 (Blackmun, J., concurring).
178. Id. at 2834.
1.980]
PRETRIAL PUBLICITY
should be constitutionally protected because: (1) open courtrooms are
traditional forums for the community to evidence concern, hostility,
and emotion; (2) open trials enable the public to satisfy themselves
that justice is being done; and (3) the courtroom is a public forum
where people have traditionally gathered to exchange ideas and learn
1 79
about our judicial system.
In any event, Richmond Newspapers represents the view that, before a trial judge can exclude the public from a trial, he must determine whether alternative solutions will serve the goal of assuring the
accused a fair trial. It remains to be seen, however, what standards
will be adopted by the lower courts to govern this determination. 8 0
The lower courts may find guidance in Justice Blackmun's dissent
in Gannett.'8 ' Justice Blackmun endorsed a test which would require the moving party to establish: (1) that there is a substantial
probability that his right to a fair trial will be irreparably damaged by
conducting the proceeding in public; (2) that alternatives to closure
will not adequately protect his right to a fair trial; and (3) that there is
a substantial probability that closure will be effective.' 8 2 Ostensibly,
this approach mirrors the Nebraska Press standards.' 8 3 Justice
Blackmun specifically states, however, that an exclusionary order is
not a prior restraint.' 8 4 Counsel need only show that, because of the
nature and extent of the publicity prior to the motion to close the
trial, further exposure possibly will prejudice the jurors. 18 5 This task
is accomplished without a showing that an open hearing necessarily
86
will result in the publication of inherently prejudicial information.'
179. Id. at 2827.
180. Recently, in United States v. Cianfrani, 573 F.2d 835, 854 (3d Cir. 1978), the Third
Circuit adopted a "strict and inescapable necessity" test for closure.
181. Gannett Co. v. DePasquale, 443 U.S. 368, 439 (1979) (Blackmun, J., concurring in part,
dissenting in part). Justice Blackmun's interpretation of the sixth amendment public trial
guarantee should not be dismissed lightly. He argues that there is no evidence to support the
majority's conclusion that the sixth amendment was created only for the accused. According to
Justice Blackmun, at the core of the sixth amendment is "an unbroken tradition at English
common law of open judicial proceedings in criminal cases." Id. at 423.
182. Id. at 441-42 (Blackmun, J., concurring in part, dissenting in part).
184. 443 U.S. 368, 446-47 (1979) (Blackmun, J., concurring in part, dissenting in part).
185. Specifically, Justice Blackmun concluded that the court should consider the extent to
which publication of information, unknown to the public, will affect the prospective jurors.
Id. at 447-48.
186. Even Justice Powell, who concluded that the public has a first amendment right to
attend trial and pretrial hearings, would not require trial judges to resort to the prior restraint
analysis adopted in Nebraska Press. Under Justice Powell's test, when seeking an exclusionary
order to eject the public from a pretrial hearing, defense counsel need only establish that there
is a reasonable likelihood that an open hearing will prejudice the community against the defendant. The burden will then shift to the opposing party to show that there are less restrictive
474
[Vol. 29:439
Counsel should be aware that the prosecution's consent to closure
is no longer sufficient to support the issuance of an exclusionary order. The judge has the responsibility to weigh all competing interests, including those of the public. Richmond Newspapers, however, should not be interpreted as saying that exclusionary orders are
tantamount to prior restraints. Thus, counsel should vigorously argue
that both Gannett and Richmond Newspapers recognize the importance of preventing the media from gaining access to information that
may prejudice the jurors.
IV.
PROTECTIVE ORDERS: EXAMINING THE TRIAL JUDGE'S
AUTHORITY TO PROSCRIBE EXTRAJUDICIAL STATEMENTS
BY TRIAL PARTICIPANTS
In Sheppard v. Maxwell, 187 the Supreme Court admonished trial
courts to protect a defendant from prejudicial publicity, and au-
thorized the judge to issue a protective order to safeguard the defendant's right to an impartial jury.1 8 8 The Court did not, however,
establish any limiting principles to guide the lower courts in exercising their discretion to issue such orders. Instead, the Court was con-
vinced that preventing the release of information by trial participants
was a proper and effective means of assuring the fairness of a criminal
trial. 18 9
The Court in Sheppard failed to acknowledge that first amendment
freedoms. are necessarily offended by a court order proscribing extrajudicial comment by trial participants. 190 Nebraska Press subalternatives available. In contrast, when seeking an exclusionary order to eject the public from
judicial proceedings, including pretrial hearings, under Justice Blackmun's test, defense counsel
must carry the burden of proof on all three components set forth in Nebraska Press. Gannett
Co. v. DePasquale, 443 U.S. 368, 399-400.
187. 384 U.S. 333 (1966).
188. Id. at 361. Justice Clark, writing for the majority, emphasized that "the trial court might
well have proscribed extrajudicial statements by any lawyer, party, witness, or court official
which divulged prejudicial matters .... " Id.
189. Id. at 362. The Court reasoned that:
Due process requires that the accused receive a trial by an impartial jury free from
outside influences. Given the pervasiveness of modem communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts
must take strong measures to ensure that the balance is never weighed against the
accused.
Id,
190. In Younger v. Smith, 30 Cal. App. 3d 138, 106 Cal. Rptr. 225 (1973), the court remarked that "it simply is impossible for us to believe that in Sheppard eight members of the
Supreme Court agreed on page after page about what the trial judge should have done, without
considering whether the First Amendment would have permitted him to do it." Id. at 156-57,
106 Cal. Rptr. at 237. If the Court endorsed the use of protective orders with full knowledge of
1980]
PRETRIAL PUBLICITY
sequently strengthened first amendment claims in the free press-fair
trial controversy, but only with regard to gag orders. Gannett, however, addressing exclusionary orders for pretrial hearings, held against
the claims of the press. The Court in Gannett felt that the strict prior
restraint standards adopted for gag orders in Nebraska Press do not
apply to exclusionary orders. The practitioner can expect that the
Gannett standards will apply to protective orders, 191 because these
orders concern the media's right of access, rather than the issue of
192
prior restraint.
The more difficult question is whether a protective order operates
as a prior restraint on the trial participants' right of free speech. Defense counsel must overcome the argument that the traditional presumption that prior restraints are constitutionally invalid' 93 militates
against the issuance of protective orders that limit free discussion of
criminal investigations and pending trials. 1 94 Furthermore, although
Sheppard established that judges have an obligation to proscribe the
release of prejudicial information by trial participants if it will impair
the accused's right to a fair trial, uncertainty remains as to whether
the court must first exhaust the traditional curative measures before
resorting to a protective order.' 9 5 The Supreme Court must eventually elaborate upon the dicta in Sheppard that purported to establish
that a reasonable likelihood that prejudicial news coverage will pre-
the possible first amendment arguments, then Sheppard apparently established a per se right to
control the flow of information concerning a pending criminal trial.
191. See State v. Carter, 143 N.J. Super. 405, 407, 363 A.2d 366, 367 (App. Div. 1976),
where the court concluded, after citing Nebraska Press and Sheppard, that "there presently
exists ample authority for the issuance by a trial court of an order limiting pretrial public comment by the parties and their attorneys." The only limitation is that the trial judge must support
the order with a finding that a reasonable likelihood exists that an accused's rights will be
jeopardized if the order is not issued. Cf. State v. Schmid, 109 Ariz. 349, 509 P.2d 619 (1973)
(it is not objectionable for trial courts, in unusual circumstances, to issue orders proscribing
extrajudicial statements likely to interfere with criminal defendant's right to fair trial).
192. The rationale, which prompted the Supreme Court to hold in Richmond Newspapers,
Inc. v. Virginia, 100 S. Ct. 2814 (1980), that the public has a first amendment right to attend
criminal trials, would not apply to protective orders. See notes 167-186 supra.
194. Courts, however, have consistently interpreted Sheppard to mean that trial judges have
a duty to proscribe the release of prejudicial matter by trial participants. See, e.g., Hirschkop v.
Snead, 594 F.2d 356 (4th Cir. 1979); Central S.C. Chapter, Soc'y of Professional Journalists v.
Martin, 431 F. Supp. 1142 (D.S.C.), modified, 556 F.2d 706 (4th Cir. 1977), cert. denied, 434
U.S. 1022 (1978); Rosato v. Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975),
cert. denied, 427 U.S. 912 (1976); State v. Carter, 143 N.J. Super. 405, 363 A.2d 366 (App.
Div. 1976); People v. Dupree, 88 Misc. 2d 780, 388 N.Y.S.2d 203 (1976).
195. See United States v. Mandel, 408 F. Supp. 673 (D. Md. 1975) (judge should exhaust
curative measures).
476
[Vol. 29:439
vent a fair trial is suffidient to justi*y the issuance of a protective
order. 196
A. Restraining the Free Discussion of Criminal
Investigations and Pending Trials
Despite the fact that Sheppard authorizes the use of protective orders to combat pretrial publicity, the media have continued to argue
that protective orders violate their first amendment right to gather
news. 19 7 The courts have responded inconsistently to the media's
claims. In Central South Carolina v. Martin,19 8 a federal district
court judge issued a protective order proscribing any "extrajudicial
statements by trial participants in the trial, including lawyers, parties,
witnesses, jurors and court officials, which might divulge prejudicial
matter not of public record in the case . . ."
199
The media chal-
lenged the order and charged that the judge was constitutionally estopped from issuing such an order, because it "effectively destroyed
the right of the press to print the news by destroying its right to
gather news from important sources." 20 0 The media argued that a
protective order constitutes a prior restraint on their constitutional
right to report information about judicial proceedings, 20 1 and therefore, should be subject to the rigid standards set forth by the Sup20 2
reme Court in Nebraska Press.
196. Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). The Fourth Circuit, in Hirschkop v.
Snead, 594 F.2d 356 (4th Cir. 179), found a reasonable-likelihood test permissible for a protective order involving attorneys. Id. at 362. The Seventh Circuit, however, has reached different
results in a series of cases dealing with the constitutionality of protective orders. See Chicago
Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976);
In re Oliver, 452 F.2d 111 (7th Cir. 1971); Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970). The
central theme running through the Seventh Circuit cases is that protective orders cannot be
issued by trial judges in the absence of a clear and present danger to the administration of
justice.
197. Because the newsgathering right is viewed as a means of fulfilling the public's right to
know, the lover courts have been willing to grant the press standing to challenge the validity of
protective orders. By concentrating on the fact that the newsgathering rights are within the
zone of interests protected by the first amendment, these courts have concluded that a protective order causes news reporters injury-in-fact as it curtails their ability to gather news concerning the judicial system. See CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) (per curiam);
Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977); State ex rel. Miami
Herald Publishing Co. v. McIntosh, 340 So. 2d 904 (Fla. 1976).
198. 431 F. Supp. 1182 (D.S.C.), modified, 556 F.2d 706 (4th Cir. 1977), cert. denied, 434
U.S. 1022 (1978).
199. 431 F. Supp. at 1184.
200. Id. at 1185.
201. Id.
202. See notes 75-80 supira.
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The district court rejected the contention that a restraint on the
right to gather information from trial participants must satisfy the
strict standards established for gag orders. 20 3 Instead, the court concluded that proscriptions on trial participants' prejudicial statements
are to be judged by the reasonable-likelihood standard of Sheppard.20 4 The holding advanced the view that the Court's liberal attitude towards protective orders in Sheppard survived the decision in
Nebraska Press, enabling the judge to choose between traditional
curative measures and protective orders to safeguard the accused's
right to an impartial jury.
A second federal district court, in United States v. Mandel,20 5 denied the prosecution's petition to prohibit all parties from making
statements without the prior permission of the court. The prosecution
argued that the defendant, Maryland Governor Marvin Mandel, had
virtually unlimited access to the press and was manipulating the
20 6
media in an effort to prejudice prospective jurors in his favor.
Although the court recognized that both sides in a criminal prosecu20 7
tion are entitled to have the case tried by a fair and impartial jury,
it held that a protective order would not be issued unless the government made a clear showing that the publicity would be so prejud-
203. 431 F. Supp. at 1189. See also CBS, Inc. v. Lieberman, 439 F. Supp. 862 (N.D. Ill.
1976). In Lieberman, CBS sought to enjoin members of the Illinois Commerce Commission
from enforcing an unwritten policy that prohibited the filming, videotaping, or audiotaping of
Commission hearings. Arguing that it was likely to prevail on the merits, CBS contended that
the Commission's policy constituted an impermissible prior restraint on CBS's first amendment
right to publish news concerning the Commission's activities. Id. at 865. The court, noting the
Supreme Court decision in Nebraska Press, responded that: "[Pilaintiff has not been restrained
from disseminating news or commenting upon the' proceedings before the Commission....
Rather, what is involved here is a limitation upon the manner in %.hich plaintiff may gather,
record or memorialize information for television dissemination." Id. at 865-66 (citations omitted). The court denied CBS injunctive relief on the premise that the scope of the newsgathering
right was not fully established, and a full hearing would be necessary to adjudicate the competing interests at stake.
204. Central S.C. Chap., Soc'y of Professional Journalists v. Martin, 431 F. Supp. 1182, 1189
(D.S.C.), modified, 556 F.2d 706 (4th Cir. 1977), cert. denied, 434 U.S. 1022 (1978). The court
stated that:
The conclusion to be drawn from reading Nebraska is that proscriptions on trial
participants' prejudicial statements in a criminal case are not to be considered as
prior restraints on non-trial participants' First Amendment rights to publish and
comment upon judicial proceeding and that proscriptions on trial participants' prejudicial statements are to be judged by the Sheppard standard as it regulates the
conduct of the participants in the trial.
Id.
205. 408 F. Supp. 673 (D. Md. 1975).
206. Id. at 675.
207. Id. at 677.
478
[Vol. 29:439
icial as to prevent the selection of an impartial jury.208 The court
rejected the government's request for a protective order because it
did not adequately demonstrate both the existence of prejudice and
20 9
the unavailability of traditional safeguards.
The court's approach in Mandel is similar to that adopted for gag
orders by the Supreme Court in Nebraska Press.2 10 Mandel suggests
that a protective order has the same impact on the press as a prior
restraint, in that it directly prohibits publication.2 11 Gannett, however, can be interpreted as a rejection of the rationale of Mandel. In
reconciling the conflict between the media's right of access and the
accused's, right to a fair trial, the Supreme Court in Gannett did not
considbr favorably the application of the Nebraska Press standards. 21 2 The Court noted that, even if the media enjoys a first
amendment right of access to information, the trial judge still can
restrain media access if there is a reasonable probability that prejudice against the accused would occur. 2 13 Thus, as the issues involved in protective orders are more closely related to exclusionary
orders than to gag orders,2 14 the reasonable-probability test of Gannett, rather than the strict standards of Nebraska Press, should be
applied to protective orders. Mandel, in applying standards similar to
those for gag orders, instead of those related to exclusionary orders,
followed the less rational path.
The media undoubtedly will continue to oppose the issuance of
protective orders by arguing that the first amendment protects their
right to collect information from all available sources, including trial
participants. If the prosecutor and the judge agree that a protective
order is necessary, defense counsel can suggest that, inasmuch as
Gannett permits an exclusionary order when both parties and the.
judge agree one is necessary,2 15 a protective order may be similarly
208. Id. Such a finding was made by the court in United States v. Vealey, 308 F. Supp. 653
(N.D. Ohio 1970), where the murder of Joseph Yablonski had raised public interest in the trial
on a national level. The judge determined that Sheppard required that the court take action to
protect the accused from excessive pretrial publicity. Id. at 654.
209. United States v. Mandel, 408 F. Supp. 673, 678 (D. Md. 1975). See also In re Adoption
of Proposed Local Rule 17, 339 So. 2d 181 (Fla. 1976), where the Florida Supreme Court was
asked to approve a local court rule that prohibited broadcasting, televising, recording, or taking
photographs of any kind on any floor of the Metropolitan Justice Building where proceedings
were being conducted. Emphasizing that any restraint on newsgathering would effectively destroy the freedom of the press, the court concluded that this rule was unconstitutional as there
were less onerous alternatives available to protect the integrity of the trial system.
211. United States v. Mandel, 408 F. Supp. 673, 676 (D. Md. 1975).
213. Gannett Co. v. DePasquale, 443 U.S. 368, 392-93 (1979).
214. See note 191 & accompanying text supra.
215. Gannett Co. v. DePasquale, 443 U.S. 368, 382-84 (1979).
1980]
PRETRIAL PUBLICITY
justified. The burden imposed upon the newsgathering right of the
media under this arrangement would be no different from the burden
imposed in the context of exclusionary orders. In either case, there is
a denial of access to information concerning the proceeding. If the
judge prefers to hold a hearing concerning the issuance of a protective order, Gannett would support counsel's argument that the court
should employ a balancing test. 2 16 Furthermore, because a protective order is not a prior restraint, counsel should have to show only
that unrestricted statements by trial participants would reveal prejudicial matters that are reasonably likely to taint the minds of the prospective jurors.
B. The Competing Interests of the Trial Participants
Prior restraints on freedom of speech are subject to the closest
scrutiny. 2 17 Insofar as trial participants-witnesses, lawyers, jurors,
and court personnel-are concerned, an argument can be made that
protective orders prevent the exercise of their right to freedom of
speech. Thus defense counsel should be prepared to respond to objections raised by trial participants, as well as to those raised by the
media.
Counsel may suggest that the release of information concerning
highly prejudicial matters that are inadmissible in evidence detrimentally affects the sixth amendment right to a fair trial.21 8 Both Nebraska Press and Gannett indicate that courts have an overriding responsibility to maintain the integrity of their proceedings and to
safeguard a defendant's right to a fair trial. 2 19 A second rationale for
217. See note 6 supra. In CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) (per curiam), a
protective order case, the Sixth .Circuit stated that "[in a long series of cases the Supreme
Court has made it clear that prior direct restraints by government upon First Amendment
freedoms of expression and speech must be subjected by the courts to the closest scrutiny." Id.
at 238 (emphasis added).
218. Protective and exclusionary orders have received widespread approval from the appellate courts in California, which have held that a trial court has both the authority and the duty
to control the dissemination of prejudicial matter and to insulate the trial from outside influences. The cases exemplify the view that the value of a fair trial is always supreme because its
preservation will ultimately assure the vindication of other constitutional rights such as free
speech and press. See, e.g., Rosato v. Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427
(1975); Allegrezza v. Superior Court, 47 Cal. App. 3d 948, 121 Cal. Rptr. 245 (1975); Younger
v. Smith, 30 Cal. App. 3d 138, 106 Cal. Rptr. 225 (1973); Farr v. Superior Court, 22 Cal. App.
3d 60, 99 Cal. Rptr. 342 (1971), cert. denied, 409 U.S. 1101 (1972); Hamilton v. Municipal
Court, 270 Cal. App. 2d 797, 76 Cal. Rptr. 168, cert. denied, 396 U.S. 985 (1969); Craemer v.
Superior Court, 265 Cal. App. 2d 216, 71 Cal. Rptr. 193 (1968).
219. Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979); Nebraska Press Ass'n v. Stuart,
427 U.S. 539, 569 (1976).
THE AMERICAN UNIVERSITY LAW REvIEw
[Vol.
29:439
restraining the speech of trial participants is that they possess
privileged information and can no longer assert the same first
amendment right to speak as the public at large.2 2 0 Police officers,
court personnel, and lawyers acquire information by virtue of their
status and employment; thus the disclosure of information that is
22 1
likely to interfere with a fair trial is properly censorable.
Moreover, it is well established that laws regulating the time,
place, or manner of speech are viewed as being less suspect than laws
prohibiting speech altogether.2 2 2 A protective order simply regulates
the time and place of a trial participant's communication. One court,
for example, found that the courtroom was the place to settle issues
relating to the trial and that the trial participant's comments could be
2 23
limited to the courtroom until all danger of prejudice had passed.
Although these theories support the issuance of a protective order,
it is equally important for the practitioner to realize that he may wish
to oppose a protective order. Defendants and attorneys have claimed
that they should be afforded a higher level of first amendment protection than witnesses, police officers, and court personnel. 22 4 The
basic argument offered in support of a criminal defendant's right to
comment on his trial is that the fundamental right to a public trial
belongs exclusively to the accused. Such a notion is based on the
language of the sixth amendment which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... public
trial." 225 It follows that the trial judge cannot deny the accused his
220. People v. Dupree, 88 Misc. 2d 780, 388 N.Y.S.2d 203 (1976).
221. Id. One court emphasized that prosecutors and police officers "should never discuss a
pending case with the press at any stage of the proceedings before the final jury verdict." State
v. Sette, 242 S.E.2d 464, 472 (W. Va. 1978). See also Hirschkop v. Snead, 594 F.2d 356, 366
(4th Cir. 1979), wherein the court suggested that lawyers, who have a duty to the court and to
the public to protect the fairness of the judicial process, are subject to greater restrictions than
other citizens.
The Reardon Committee of the American Bar Association found that disclosure of certain
matters by a lawyer, who is engaged in pending litigation or who is contemplating litigation, is
so inherently prejudicial that it may be proscribed. See ABA, Standards Relating to Fair Trial
and Free Press (1968).
222. See, e.g., Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977); Grayned v. City
of Rockford, 408 U.S. 104 (1972); Adderley v. Florida, 385 U.S. 39 (1966); Kovacs v. Cooper,
336 U.S. 77 (1949).
223. State v. Van Duyne, 43 N.J. 369, 389, 204 A.2d 841, 852 (1964), cert. denied, 380 U.S.
987 (1965). See also State ex rel. Angel v. Woodahl, 171 Mont. 13," 555 P.2d 501 (1976).
224. See generally Freedman & Starwood, Prior Restraints on Freedom of Expression by
Defendants and Defense Attorneys: Ratio Decidendi v. Obiter Dictum, 29 ST., L. REv. 607
(1977).
225. U.S. CONST. amend. VI (emphasis added).
1980]
PRETRIAL PUBLICITY
right of free speech, even though other trial participants may be de22 6
nied this right.
This argument was advanced in United States v. Mandel,227 where
the prosecution requested a protective order after the defendant publicly attacked state officials and the prosecution for allegedly trying to
destroy him politically. 22 8 The court recognized the right of an accused to air his views regarding charges brought against him and refused to quiet Governor Mandel because there was no evidence that
229
the failure to issue a protective order would jeopardize a fair trial.
Nevertheless, the court opined that the accused's right to reply publicly to the prosecutor's charges is not absolute.2 30 Thus, the court
implicitly recognized the prosecutor's correlative right to insist upon a
231
fair trial and impartial jury.
It remains to be seen whether defense lawyers will receive the
same protection as that afforded defendants who wish to speak publicly. 232 Furthermore, while the defendant's rationale for free speech
may apply to the defendant's counsel, it probably does not apply to
prosecutors, who owe a fiduciary duty to the accused as well as to the
226. See Note, Gag Orders on Criminal Defendants, 27 HASTINGS L.J. 1369, 1378 (1976).
While other trial participants can be covered by gag orders because their first
amendment rights are outweighed by the defendant's sixth amendment guarantees
this justification would not seem to apply to the defendant .... [T]he accused is
not within these ordinary disciplinary powers.
Id.
227. 408 F. Supp. 673 (D. Md. 1975).
228. Id. at 678. See generally Comment, Silence Orders-PreservingPolitical Expression by
Defendants and Their Lawyers, 6 HARV. C.R.-C.L. L. REv. 595 (1971).
229. United States v. Mandel, 408 F. Supp. 673, 678 (D. Md. 1975).
230. Id.
231. In Sun Company v. Superior Court, 29 Cal. App. 3d 815, 105 Cal. Rptr. 873 (1973), the
court deferred to the societal interest in the sixth amendment right to a fair trial, noting that:
[A] person accused of crime enjoys the fundamental right of a fair trial under the
Sixth and Fourteenth Amendments. But strangely, the right of the People to a fair
trial, as a correlative to that enjoyed by the accused, does not appear to be stated in
constitutional terms. Nevertheless, it seems implicit in any concept of due process
that society is entitled to a fair trial for redress of wrongs against it and that the
victim of a criminal wrong is certainly entitled to the same right.
Id. at 822, 105 Cal. Rptr. at 878. See Freedman & Starwood, supra note 224, where the
authors suggest that a defendant could never generate enough publicity to prejudice the prosecutor's case.
232. As one commentator stated, "[tihe defense attorney's freedom of expression regarding
pending litigation stems from two sources. The first is the defendant's right to respond publicly
to the prosecutor's charges and the attorney's role as the defendant's champion against a 'hostile
world.' The second is the attorney's individual right to freedom of speech." Freedman & Starwood, supra note 224, at 614. See generally Comment, First Amendment Prospective:The Gag
Rule and Free Speech, 51 CHI.-KENT L. REv. 597 (1974); Note, Attorney "Gag Rules": Reconciling the First Amendment and The Right to a Fair Trial, 1976 U. ILL. L.F. 763.
[Vol. 29:439
482
public. 233
Not only must the prosecutor protect society's interest in
open trials, but he also must be sensitive to the due process rights of
the accused and refrain from making comments that interfere with
234
those rights.
In the final analysis, the practitioner should remember that when
the judge is asked to consider a protective order, counsel's ultimate
objective will be to prevent disclosure of information that is likely to
prejudice prospective jurors. 23 5 Counsel should guide the court
away from a stringent clear-and-present-danger test, 23 6 and toward
the application of the reasonable-likelihood test.2 3 7 The court's atten-
233. See Larson & Murphy, supra note 76. The authors conclude that the prosecution must
take -affirmative action to maintain an adversary system that dispenses impartial justice, rather
than one that merely seeks convictions. Accord, Younger v. Smith, 30 Cal. App, 3d 138, 106
Cal. Rptr. 22.5 (1973); Freedman & Starwood, supra note 224, at 617.
234. See Gannett Co. v. DePasquale, 443 U.S. 368, 384 n.12 (1979).
Similarly, one court held that law enforcement agencies have an obligation "to avoid making
any public statements concerning the progress of the investigation of a crime or the proof already obtained as to the complicity of any person who is either a defendant or likely to be
prosecuted for the crime." United States v. Mase, 556 F.2d 671, 675 (2d Cir. 1977) (quoting
United States v. Bando, 244 F.2d 833, 837-38 (2d Cir.), cert. denied, 355 U.S. 844 (1957)). See
generally Haines, The Aftermath of Sheppard: Some Proposed Solutions to the Free Press-Fair
Trial Controversy, 59 J. Crim. L. 234, 237-40 (1968).
235. See, e.g., United States v. Tijerina, 412 F.2d 661, 666 (10th Cir.) (reasonable likelihood
that prejudicial publicity would prevent fair trial held sufficient to justify ban on pretrial statements), cert. denied, 396 U.S. 990 (1969); Central S.C. Chapter, Soc'y of Professional Journalists v. Martin, 431 F. Supp. 1182, 1189 (D.S.C.) (extrajudicial disclosure of prejudicial matters held restrainable when such disclosure is reasonably likely to preclude fair trial), modified,
556 F.2d 706 (4th Cir. 1977), cert. denied, 434 U.S. 1022 (1978); United States v. Mandel, 408
F. Supp. 673, 676 (D. Md. 1975) (government motion to restrain statements likely to interfere
in any manner with fair trial denied as premature); Younger v. Smith, 30 Cal. App. 3d 138, 166,
106 Cal. Rptr. 225, 244 (1973) (protective order directed against district attorney).
236. The clear-and-present-danger test has been adopted by the Seventh Circuit. In Chicago
Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976),
the court held that local court rules which prohibited lawyers from releasing any information
concerning pending litigation that is reasonably likely to interfere with a fair trial or otherwise
prejudice the administration of justice were unconstitutionally vague and overbroad. The court
dismissed the reasoning, which was later adopted in Hirschkop v. Snead, 594 F.2d 356 (4th Cir.
1979), that lawyers know exactly what areas of speech are reasonably likely to interfere with a
fair trial.
237. The reasonable likelihood test has been adopted by the Fourth and Tenth Circuits. For
example, in United States v. Tijerina, 412 F.2d 661 (10th Cir.), cert. denied, 396 U.S. 900
(1969), the court emphasized that "[t]he Supreme Court has never said that a clear and present
danger to the right of a fair trial must exist before a trial court can forbid extrajudicial statements about a trial." Id. at 666. Similarly, in Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979),
the court stated that "[i]mplicitly if not explicitly, the Supreme Court must have approved the
reasonable likelihood standard for the application of the preventive rules." Id. at 370.
One court, however, suggests that the labels given these tests are not worth litigation, since
they serve to hide a deeper problem:
[S]ince the assessment of the need for a protective order must take so many uncertain factors into account, pedantic appellate debates over the correct criterion are
1980]
PRETRIAL PUBLICITY
tion should be directed to the nature and extent of the publicity, the
size of the community, and the probable effect that the release of
information by trial participants will have on the impartiality of the
jurors. Defense counsel must be prepared to deal with access claims
by the press and free speech claims by trial participants. In both
cases, counsel can argue, first, that the right is weakened in the setting of a criminal prosecution, and second, that the right is outweighed by the need for a fair trial.
CONCLUSION
Defense attorneys must assume a more active role in protecting
their clients from publicity before and during trial. Such action is
necessitated by the fact that adverse publicity can have a psychological impact on jurors that may make a fair evaluation of the evidence
presented at trial impossible. The defense attorney's goal is to prevent prospective jurors from obtaining inadmissible prejudicial information, thus enabling the court to empanel a fair and impartial jury
in accordance with the sixth amendment.
Traditional measures to cure the effects of prejudicial publicity continue to find favor in the courts. The practitioner should recognize
that continuance, change of venue, voir dire, jury instructions, and
sequestration are still viable means to protect the accused. Such measures provide adequate relief when the publicity has been localized or
when the reporting has been infrequent and objective. When a case
has attracted widespread, adverse news coverage, however, preventive measures will be necessary to avoid juror prejudice.
The most effective preventive measure is a gag order; the accused's
interests are best protected if the media, the source of the prejudice,
is restrained from publishing. To obtain a gag order, however, the
practitioner must be able to satisfy the inherent-prejudice standard of
Nebraska Press. Where this stringent requirement cannot be met,
the use of exclusionary and protective orders should be explored.
In Gannett, the Supreme Court defended the use of exclusionary
orders to close pretrial hearings to the general public. Recourse to
such a closure order may be essential if the practitioner intends to
niove to suppress a confession or other evidence. Because the attor-
good clean fun for those who enjoy that sort of thing, but of precious little help to
the trial judge who must silence the sources of prejudicial pre-trial publicity as soon
as possible, or risk spending weeks or months trying a case which is doomed to be
reversed, should it result in a conviction.
Younger v. Smith, 30 Cal. App. 3d 138, 160, 106 Cal. Rptr. 225, 240 (1973).
484
[Vol. 29:439
ney will want to prevent the media from obtaining this prejudicial
information from other sources, an exclusionary order should be
linked to a protective order. If these orders effectively prevent the
media from obtaining the prejudicial information, there may be no
need for a gag order. Of course, if the media obtain prejudicial information during the trial, the defense attorney may feel that it is
necessary to request a gag order or to advise the court of the need for
an immediate continuance, change of venue, or voir dire of the jury.
When seeking preventive relief, whether a gag order, exclusionary
order, or protective order, a hearing by the trial court often will be
required. Rights of free press, free speech, fair trial, and public trial
must be dealt with in these hearings, and the defense attorney must
be prepared to argue that the right to a fair trial is paramount. The
practitioner must constantly monitor media coverage of his case and
must act expeditiously when it is apparent that prejudicial information
will be released to the media or the public. Through the use of gag
orders, exclusionary orders, and protective orders, the practitioner
can prevent prejudicial publicity from influencing a jury in situations
where traditional measures might prove inadequate.

gag orders, exclusionary orders, and protective orders

Transcription

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