Generally, trials in the United States are open to the public. In the past, this meant that if you wanted to view the trial, you would need to physically attend. Now, television and internet broadcasts (and especially social media) have made trials much more accessible to a much greater audience.
Written by: Tara Luther, Promega
Some more high profile cases have become almost like sporting events, in which the public tends to ‘choose a side’ and then becomes highly invested in the outcome. This only increase the chances that traditional or social media coverage will increase.
Television news stories tend to consist of ten-second to three-minute segments, depending on the importance of the story. In this time, the story will relay actual facts, potential impacts of the story, witness accounts, and maybe an expert to interpret. With the invention of smart phones and the increase in content being produced, the average human attention span has been lowered to 8 seconds (for comparison, that’s one second less than a goldfish). Due to this, news programs generally use headlines that grab a viewer’s attention, and increasingly use terms such as “shocking” or “new revelations” to describe the story. Use of these terms can create biases in potential jury members.
According to Statistica, 81% of people in the United States had a social media profile in 2017 – an increase of 5% from 2016. Statistics show that every 60 seconds there are 3.3 million Facebook posts, 448,800 tweets, and 1,440 WordPress posts created. This is on top of the 500 hours of YouTube video uploaded and 149,513 emails sent each minute. An additional challenge with the internet is that posts have a much longer lifetime, and there are many more opinions being presented – not just facts of the case.
All of this accessibility can cause conflict between the First and Sixth Amendments. The Supreme Court has ruled that courts cannot stop the press from publicizing truthful information about criminal trials as doing so would violate the First Amendment right to freedom of the press. Yet, under the Sixth Amendment, every defendant is entitled to a trial by an impartial jury of his or her peers.).
Given the increase in criminal publicity, and the ease of accessing this information, how does pretrial publicity (PTP) impact jury members? Will they have a difficult time separating media coverage or opinions from evidence, and even more important, will they be biased against the defendant?
The American Psychological Association (APA) published a meta-analysis in which they analyzed 44 independent empirical tests containing studies from 1966-1997 with a total of 5,755 subjects. The goal was to determine what effect PTP had on jurors. The results showed that across studies, those subjects who had viewed negative PTP were more likely to find the defendant guilty than those who had viewed less or no negative PTP. In a separate study, the APA found that jurors who had been exposed to more PTP had an increased bias in comparison to those who had viewed less PTP.
Similarly, Ruva et al looked at the effect of positive PTP on jurors. In the study, subjects were exposed to negative, positive, or no PTP and then asked to give credibility ratings for the defendant. Those exposed to positive PTP were more likely to find the defendant more credible and ultimately not guilty, while those exposed to negative PTP had higher anger after the trial, which led to guilty verdicts. This study also showed that jurors had a tendency to distort a witness’ testimony to support the PTP they were exposed to.
A fourth (and most troubling) study done by the University of South Florida found that even though jurors had received instructions telling them not to discuss PTP, they still spent a “significant amount of their deliberation time” discussing what they’d seen. Not only did other jurors not reprimand those discussing PTP, but they acknowledged that what was being discussed was from PTP and continued the conversation anyway. Subjects in this study had also commonly presented facts that had only been heard on PTP as those that had been presented during the trial.
So what can be done to counteract these effects? In some instances, a change of venue may be beneficial, but this may not assist with cases that have garnered national attention, and these requests are rarely granted, partly due to the cost of transporting and housing attorneys, witnesses, and court personnel.
Trial consultant Jo-Ellan Dimitrius, who’s assisted with jury selection for clients representing both plaintiffs and defendants, recommends asking jurors if they had seen or read PTP on the case. After, she advises following up with questions such as these: “With whom might you have had conversations about what you saw? Have you done anything in furtherance of your feelings?”
Matthew Mastromauro, author of Pre-Trial Prejudice 2.0: How YouTube Generated News Coverage is Set to Complicate the Concepts of Pre-Trial Prejudice Doctrine and Endanger Sixth Amendment Fair Trial Rights, suggests for attorneys to do a keyword search regarding the crime, so that they also know what’s been shared on the internet in regards to the case. He also recommends for attorneys to note how many times a webpage has been visited or shared (if possible) to determine how widely viewed an article may be.
Whether or not a juror has actually formed a pre-existing opinion about a case, University of North Carolina Greensboro associate professor of media studies Kimberlianne Podlas says, “I think there’s an effect of believing in the effect. If judges, prosecutors, and law enforcement think there is some kind of effect going on — whether they’re correct or not — then that will necessarily influence their behaviors in the courtroom, in choosing cases, in deciding when they’re going to have splashy conferences, what kind of experts they might choose.”
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