Pretrial publicity involves a collision of core constitutional issues, which involve several basic questions—Does pretrial publicity bias the outcome of a trial against defendants? Do remedies work? How do publicized cases fit into the overall justice system?
There have been at least 40 empirical studies on pretrial publicity. Studebaker and Penrod, prominent researchers, offered this assessment: “In sum, it appears that the effects of pretrial publicity can find their way into the courtroom, can survive the jury selection process, can survive the presentation of trial evidence, can endure the limiting effects of judicial instructions, and cannot only persevere through deliberations, but may actually intensify.”1
That conclusion seemed suspect to us. We read the studies ourselves and found that, among other problems, many used mock jurors who were all undergraduate students, used mock cases with conviction rates substantially lower than in actual cases, and exposed mock jurors to a very high level of publicity. Many studies also did not include any deliberation.
Even if all the academic studies were fully valid, however, we could not find a consensus of research showing a pretrial publicity effect. The research falls into roughly four groups.
A first set of studies does not include trial evidence. Not surprisingly they find that pretrial publicity can bias trials. These studies we believed to be of little relevance to actual practice, since (fortunately) all trials involve evidence.
A second set of studies did include trial evidence and found a pretrial publicity bias, although most of them departed from actual trial procedure in the ways suggested above. One fairly common shortcoming was that researchers would ask mock jurors for a pre-deliberation verdict and then measure a change in opinion in the final verdict to estimate the effects of deliberation. As Jonathan Freedman2 has pointed out, asking for pre-deliberation verdicts may be what creates the bias, and not publicity.
A third set of studies produced mixed results with some confirming and others disconfirming a pretrial publicity bias.
A final set of studies did not find a pretrial publicity effect. Not only did at least some remedies work at least part of the time but also some types of publicity, and even negative publicity, actually helped defendants.
We then collected two new sets of data. The first simply sought to test the laboratory research in the actual trials. We studied all federal first-degree murder and robbery cases between 1993 and 1995, 891 in all (51 of which involved allegations of first-degree murder). We then tracked down newspaper coverage of all those cases. We had three major findings. First, pretrial publicity in criminal trials does not influence verdicts, although it may influence sentence lengths. Second, publicity’s influence on sentencing behaved differently based on the charge. In robbery trials, more coverage resulted in longer sentences, but for murder cases the longest sentences were given in moderate publicity cases with shorter sentences in high- and low-publicity conditions. Third, publicity is more likely to influence sentencing in jury trials as opposed to plea-bargained cases. Publicity could explain sentence length in jury trials but not in pleaded cases.
Our second study explored what media scholars refer to as a “cultivation effect”—the idea that repeated messages over time tend to encourage certain views while discouraging other ones. This contrasts simpler models that assume a single message (say, a negative story about a defendant) produces a specific belief in viewers of the story.
To explore a cultivation effect, we shifted focus from individual jurors to city-level patterns and contrasted crime coverage rates, fear-of-crime survey results, and actual crime statistics in 13 different cities. We found no simple correlations between coverage, fear of crime, and conviction rates. Coverage and fear of crime interacted in complex ways, influencing plea bargains, convictions, and sentences, but not always in ways that harmed defendants.
We were left with the strong impression that the laboratory results did not bear out in our field research. There was no tendency in individual cases for more publicity to produce higher convictions. At the city level, extensive crime coverage did not drive either conviction rates or fear of crime levels.
What can be made of these findings? Is pretrial publicity largely a non-issue?
We believe that pretrial publicity will not be the dominant factor in most publicized cases, but it can emerge as a tiebreaker in the closest of them. Applying several of the cheaper remedies usually can weed out a publicity effect.
Fortunately, one thing courts do well is try to impose remedies when pretrial coverage is extensive. Using individual voir dire, enhanced instructions, an increased number of preemptory challenges, continuances, and other tools at their disposal, trial judges generally take a number of steps to correct biases. Change of venue remedies are more rare because of their relative cost. The use of several remedies is important in light of the possibility that remedies that do not work in isolation do work in combination, as some recent research has indicated.3
Our findings are cause for continued judicial vigilance. There are a number of straightforward things that courts can do to make existing remedies more effective, including better wording for instructions, individual rather than group voir dire, and the like, and we have many specific suggestions in the book’s text.
What courts do less well is provide a vigorous public defense. Anyone who seriously doubts that public defense is under-resourced could consult Stephen Bright’s work.4 The lack of funding takes a toll on justice. One consistent finding of all the social science research is that the single-most powerful factor determining the outcome of a jury trial is the evidence presented before the jury, and even the studies that do find a pretrial publicity effect generally demonstrate that it does so because it colors juror perceptions of the trial evidence. This finding suggests that if the overall concern is to produce a fair trial we should worry less about pretrial publicity and worry more about the inability of the defendant to present useful evidence by conducting independent investigations, calling difficult-to-find witness, obtaining competent counsel, and the like.
1 Studebaker, C. A. & Penrod, S. D. (1997). Pretrial Publicity: The Media, the Law, and Common Sense. Psychology, Public Policy & Law, 3, at 445.
2 Freedman, J. L., Martin, C. K. & Mota, V. L. (1998). Pretrial Publicity: Effects of Admonition and Expressing Pretrial Opinions. Legal and Criminological Psychology, 3, 255-70.
3 Kerwin, J. & Shaffer, D. R. (1994). Mock Jurors Versus Mock Juries: The Role of Deliberations in Reactions to Inadmissible Testimony. Personality and Social Psychology Bulletin, 20, 1531-162. London, K. & Nunez, N. (2000). The Effect of Jury Deliberations on Jurors’ Propensity to Disregard Inadmissible Evidence. Journal of Applied Psychology, 85, 932-39.
4 Bright, S. B. (1997). Neither Equal Nor Just: The Rationing and Denial of Legal Services to the Poor When Life and Liberty Are at Stake. Annual Survey of American Law, 1997, 783-836.
