Trial by jury is rapidly being destroyed in America by the manner in which the newspapers handle all sensational cases. (1)
[T]hese defendants were prejudged as guilty and the trial was but a legal gesture to register a verdict already dictated by the press and the public opinion which it generated. (2)
There is continuing concern in the United States about the kind of media storms that swirl around high-profile criminal proceedings such as the Sam Sheppard case, (3) the O.J. Simpson trial, (4) or the Duke lacrosse case. (5) The knowledge that the transformation of the sober and impartial investigation of guilt into a grotesque media "carnival" (6) could probably happen nowhere in the Western world other than the United States reminds us again of the distinctiveness of First Amendment jurisprudence; but the difference in this instance seems to arouse more mixed feelings in Americans than usual. As will appear below, the pernicious effect of media reportage upon public perceptions of the guilt of high-profile defendants, (7) with a possible concomitant effect upon the fairness of trials, now seems to be fairly widely accepted.
One practicing, criminal-defense lawyer describes acting for a high-profile defendant as akin to entering a "looking-glass world" in which witnesses routinely sell their stories to the press; "every scrap of ... evidence, inadmissible or not," is leaked, stolen, or otherwise ferreted out and repeatedly published or broadcast; (8) blatant and hugely damaging falsehoods are endlessly recycled in the news coverage; and "[t]he only consistent winners are those who feed public appetites for scandal and profit from the frenzy." (9) Another defense attorney speaks from experience of the "insidious degradation of the Sixth Amendment rights to a fair trial and jury, created by a commercially-motivated press capitalizing on the insatiable public appetite for sensational criminal trials." (10) Such examples look from the outside like a betrayal by the media of the First Amendment's purpose, as lives and liberties are destroyed in pursuit of stories that sell. Meanwhile, the judges look on, too often in denial about the ineffectiveness of their attempts to root out bias in their juries, too often mouthing platitudes about the vital democratic role the media plays in scrutinizing the criminal-justice system--even as the media directly attacks its integrity.
The United States Supreme Court has referred to the right to a fair trial as "the most fundamental of all freedoms." (11) But the argument of this paper is that U.S. courts must take responsibility for failing to uphold this "fundamental" right against the media when other countries have succeeded, or at least have done better. The Supreme Court has all but ruled out the most effective way of dealing with media prejudice to trials--namely, prior restraint (12)--and there is broad agreement that penal sanctions on the press would likewise fall foul of current First Amendment doctrine. (13) Much legal discourse in this area seems to take the current interpretation of the First Amendment as an unalterable given. But the U.S. Constitution...