This page was created by Alex Davis,
a Master's Degree student in the Department
of Criminal
Justice,
New
Mexico State University. This web page was
submitted in August 2003 as partial fullfillment of
the requirements
of CJ 532, Civil Liberties
in Criminal
Justice.
Introduction
"Justice should not
only be done, but should manifestly and
undoubtedly be seen to be done."
-
Lord Hewart, Rex v. Sussex, 9 Nov. 1923
In
today’s
modern world it should come as no surprise that our American
courts have not escaped the onslaught of media coverage
and media scrutiny. In a world dominated by media conglomerates
and billon dollar networks we are witnessing a transformation
of both informative as well as captivative media. Open
today’s newspaper and you will discover that much of
it’s space is dedicated to judicial proceedings, namely
high profile criminal cases. Entertainment media is further
dominated by stories with legal themes such as popular
network series like CSI and Law and Order. What effect,
if any, is all this media attention having on courts
and the judiciary?
The first
amendment of the United States Constitution guarantees
our right to freedom of press. With that said is it possible
and/or necessary to place limits on the access media
can have in the courtroom, the judiciary, and the legal
profession? Does our constitutional rights involving
free press supercede the rights of those whom are on
trial for a crime which may be effected by excessive
media coverage? Many researchers would argue that the
Constitutional concepts of equal application of the law,
fundamental fairness, and due process are jeopardized
by the role in which media plays in the courtroom.
The First
Amendment To The Constitution Of The United States reads,
“Congress
shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition
the Government for a redress of grievances.”
Our founding
fathers recognized a need to protect freedoms such as
speech, press and religion, but one is left to wander
if it is possible to protect freedoms such as the ones
listed above while at the same time protecting the freedoms
granted to us by the fifth amendment of the US constitution.
“No
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land
or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person
be subject for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of
law; nor shall private property be taken for public use,
without just compensation.”
The ongoing
debate circles around these fundamental rights, free
press and due process. Is it possible for both the first
and fifth amendment to coincide with one another without
risk of infringement? Many of the sites I have listed
provide reason to believe that it is impossible to guarantee
both due process as well as free press in regards to
courts and media. Few suggestions are offered by the
relevant websites as to what can be done differently
to protect the rights of the accused as well as inform
the public through free press. The First
Amendment guarantees the media freedom to report just
about anything it wants to, including as many details
as the media can learn about the arrest of a criminal
suspect. The Sixth Amendment guarantees a defendant a
fair and public trial, with the burden of ensuring fairness
implicitly placed on the trial judge.
Courts
and Media Articles/Web Sites Articles
An
editorial by Gary A. Hengstler, which focuses on the
effects of media in the courtroom. Provides examples
of negative as well as positive effects media
has had on the courts and its players.
http://usinfo.state.gov/journals/itdhr/0503/ijde/hengstler.htm
Provides
a historical analysis of Supreme Court cases involving
media and the courts. Attempts to address the conflicting
issues by exposing the incompatible interest of both
the first and sixth amendments of the bill of rights.
http://www.questia.com/PM.qst?action=openPageViewer&docId=27593901
Attempts
to characterize US rights to freedom of press by comparing
to both Canada and Europe. Addresses the issue of pretrial
public exposure due to media coverage as well as effect
of cameras in the courtroom. Also questions whether or not exposure to courts
and law through media coverage can be a tool for learning.
http://www.fsu.edu/~crimdo/lecture9.html
Heidi
Howard addresses the numerous issues surrounding courts
and media. This exploration is done from a historical
context as well as through analyzing the rights and
responsibilities of the press.
http://www.lectlaw.com/files/jud08.htm
This
Article explores the effects of pretrial publicity in
criminal cases of national notoriety and recommends a
remedy for the remediless wrong of prejudicial publicity
in such cases. Attempts to answer the question, “is
it possible for both the fist and fifth amendment to
coincide with one another without the risk of infringement?” Excellent
Site
http://www.wcl.american.edu/journal/lawrev/46/hard.html
Jon
Bruschke, of California State University, Fullerton,
studies the effect of pretrial publicity on trial outcomes.
Studies indicate that juries are in fact influenced
by media and more
times than not, things seen on television or read in
the paper are discussed during deliberation whether or
not included in the trial. The central questions asked
during this research were, “What is the relationship
between the amount of pre-trial publicity and the probability
of conviction in federal first degree murder trials?” As
well as, “What is the relationship between the amount
of pre-trial publicity and the length of sentences handed
down in federal first degree murder trials?
http://commfaculty.fullerton.edu/jbruschke/PTP%20revision%20as%20of%205-22-98.htm
Addresses
issues involving the 1st and 6th amendment,
the right of free press vs. the right to a fair trial.
http://wwwusers.imaginet.fr/~jebrana/USpolitics/10.html
Article
addresses differences regarding philosophy about the
role and effect of media in society as compared to the
function and operation of the justice system.
http://www.cjc-online.ca/~cjc/BackIssues/18.1/linton.html
Web Pages
National
Center for Courts and Media (NCCM) is an information
source about the interaction between the working press
and America’s courts. Provides numerous links to websites
that are relevant to the issues surrounding media and
courts.
http://www1.judges.org/nccm/
Addresses
many topics of concern in regards to courts and media.
Provides an excellent overview of the issues.
http://www.mobar.org/~mobar/handbook/freepress.htm
Legal
Information Institute provides an overview of media law.
http://www.law.cornell.edu/topics/media.html
Web
page focuses on the role media is allowed to have in juvenile
courts. Cites reasons
why states are opening up their juvenile court rooms
to media.
http://www.jrn.columbia.edu/studentwork/children/law/court.html
Excellent
comprehensive web page detailing the rules of media
and its role in the courtroom.
Information applies to Nova Scotia and was established
by the Nova Scotia Supreme Court.
http://www.courts.ns.ca/General/access-media.htm
First
Amendment Center provides links to information regarding
our Constitutional right to Free Press.
http://www.firstamendmentcenter.org/Press/index.aspx
Technology
Exposes
new technology in the courtroom. Web based company provides
real time court room transcripts and other court room
information accessible by anyone with a credit card and
an interest in what’s going on inside.
http://www.govtech.net/magazine/gt/1997/July/sections/jandt/jandt.phtml
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