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Avoiding the unavoidable: Pretrial publicity and it's effects on jury selection

Updated: Nov 9, 2021

With the expansion of technological media over the past few decades, court trials have faced more intense public interest and media coverage. Cases such as O.J. Simpson and Casey Anthony have been accompanied by high levels of media attention before the trial (i.e., pretrial publicity, “PTP”). The high profile nature of such cases and the expansive nationwide publicity that occurs before and during the trial make it almost impossible to find jurors who have not consumed any possible media-induced biases. The 6th amendment of the constitution holds that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Which drives the question, does PTP prevent the justice system from finding a truly impartial jury?

For example, take the case of Mu’Min v. Virginia (1991). Mu’Min was charged with murder. During jury selection (i.e., voir dire), 8 out of 12 jurors admitted that they had prior exposure to the case; however, these jurors were allowed on the jury. The jury convicted Mu’Min and sentenced him to death. Mu’Min appealed his case to the Supreme Court, claiming that PTP prejudiced the jury against him. He submitted evidence of 47 incriminating newspaper articles from the area that discussed the crime and his prior criminal record (evidence that would not be admissible at trial. The Court decided that jurors do not have to be questioned about the content of PTP, and will be allowed to serve as long as they indicate that they will remain impartial. Although the Court based the decision on their interpretation of the Sixth and Fourteenth Amendments, it has been criticized by legal and psycholegal scholars alike.

In the articlePretrial Publicity: The Media, the Law, and Common Sense,Studebaker and Penrod (1997) review research demonstrating that PTP influences trial outcomes. Research shows that when jurors learn about a case through the media, this information often finds its way into the courtroom. These jurors are often not eliminated during jury selection, and thus the information can taint the way they perceive the presented evidence. Moreover, judicial instructions to ignore this information are ineffective, which is not surprising to psychologists. For example, if I tell you to not think about a pink elephant, can you stop yourself? (This phenomenon is known in psychology as thought suppression, and people tend to be pretty bad at it). Concerningly, research demonstrates that deliberations can intensify focus on inadmissible PTP information.

Studebaker and Penrod (1997) concede that media coverage is ubiquitous, so finding jurors who have not been exposed to pretrial publicity is increasingly difficult. In fact, in some cases, only including jurors who have not heard about the case might be even more problematic. Is a juror who has never heard of George Zimmerman actually representative of the population? Do we want people who live under rocks representing community sentiment?

Nevertheless, it is still important to identify biases in juries caused by PTP. Courts often assume that existing safeguards, such as voir dire and judicial limiting instructions, are sufficient to eliminate bias; psycholegal research has demonstrated that these safeguards are not. Consequently, in cases of PTP, Courts should encourage the identification and elimination of bias. Parties should use a combination of techniques (e.g., surveys and jury simulations) to identify bias. Multiple techniques allow for more robust conclusions and can help the parties identify and remove biased jurors. Highly publicized cases can lead to significant bias, and therefore a multi-faceted approach is necessary to fully understand and mitigate the effects of PTP.

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