Pretrial Publicity

by

Steven D. Penrod

• LAST REVIEWED: 22 September 2021
• LAST MODIFIED: 22 September 2021
• DOI: 10.1093/obo/9780199828340-0290

Introduction

Pretrial publicity (PTP) refers to media coverage of criminal and civil cases prior to trial. Every era has its high-profile cases involving individuals and businesses—e.g., Roger Stone, Paul Manafort, Dzhokhar Tsarnaev (Boston Bomber), Enron, Timothy McVeigh, O. J. Simpson, John Hinckley, Patty Hearst, John Mitchell, Sam Shepperd, Bruno Richard Hauptmann (Lindbergh baby kidnapping), Sacco and Vanzetti. Serious and notorious crimes and cases involving celebrities tend to receive the most media attention. Much media attention will operate to the detriment of criminal and civil defendants—reporting may emphasize the dastardliness of the defendant’s actions, the effects of those acts on victims, the evidence against the defendant, opinions about the defendant’s guilt expressed by law enforcement personnel, and the like. Whenever a case receives substantial PTP—and especially when the PTP is negative—questions arise about the likelihood that a defendant can receive a fair trial. The concern is that the substantial PTP will bias prospective jurors against the defendant and result in a verdict driven by PTP rather than trial evidence. Concerns about the media potentially biasing trials pit First Amendment guarantees of a free press against Sixth Amendment rights of defendants to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Of course, if media coverage has been substantial and negative, a number of questions arise: has the deck been stacked against a defendant? To what extent? How can this be proven? If there is improper bias, what are the solutions—delay the trial? Give the defendant expanded opportunities to find unbiased jurors? Rely on judges to instruct jurors to put aside their biases (and rely on jurors to do so)? Change the trial to another venue—if there is one where the PTP has not been so voluminous or negative? A substantial body of empirical research has developed over the past fifty years that seeks to answer such questions and do so using reliable research methods.

General Overviews

Most publications concerning PTP effects take the form of commentary or the reporting of new research findings. An informative exception is Ruva 2018, which provides a broad review of research findings and contextualizes those findings in broader psychological theory. Kovera and Greathouse 2008 gives particular attention to factors that can dampen or accentuate PTP effects, while Daftary-Kapur and Penrod 2018 considers the less-well studied effects of exposure to mid-trial publicity—an issue that has grown in importance in this “social media” age. Vidmar 2002 offers very thoughtful commentary and analysis of a series of case studies underscoring several varieties of prejudice engendered by the media. Vidmar notes such prejudice can be difficult for courts to detect.

• Daftary-Kapur, T., and S. D. Penrod. 2018. Pre- and midtrial publicity in the age of Internet and social media. In Criminal juries in the 21st century: Psychological science and the law. Edited by C. Najdowski, and M. Stevenson, 155–172. New York: Oxford Univ. Press.

  DOI: 10.1093/oso/9780190658113.001.0001

  The authors consider the effects of PTP and tackle the emerging question of the impact of mid-trial publicity—raising questions about the potential impact of exposure to media coverage during the course of a trial and prospective dangers posed by the ready access of jurors to social media.

• Kovera, M. B., and S. M. Greathouse. 2008. Pretrial publicity: Effects, remedies, and judicial knowledge. In Beyond common sense: Psychological science in the courtroom. Edited by E. Borgida and S. T. Fiske, 261–279. Malden, MA: Blackwell.

  Examines the effects of moderators of PTP effects such as content, emotional tone, study methods, and potential remedies (e.g., voir dire, judicial instructions, delay, and change of venue). Discusses ways in which PTP scholarship is used in court to support pretrial motions.

• Ruva, C. L. 2018. From the headlines to the jury room: An examination of the impact of pretrial publicity on jurors and juries. In Advances in psychology and law. Vol. 3. Edited by M. K. Miller and B. H. Bornstein, 1–39. New York: Springer.

  DOI: 10.1007/978-3-319-75859-6_1

  An expansive review of PTP research—particularly strong in identifying psychological processes undergirding PTP effects.

• Vidmar, N. 2002. Case studies of pre- and midtrial prejudice in criminal and civil litigation. Law & Human Behavior 26.1: 73–105.

  DOI: 10.1023/A:1013881208990

  Case studies are used to reveal deficiencies in the way that PTP has been operationalized in many simulation experiments. Vidmar argues that prejudice can involve general prejudices and pressures on juries to conform to community values. Vidmar argues that jurors’ self-reports of attitudes contradict the judicial view that superficial questioning can uncover prejudice.