The Deprivation of the Sixth Amendment in Capital Cases, Caused by the Media Sensationalism in Pretrial Publicity

“Sinister case,” “monstrous act,” “hours of terror,” “gruesome death,” and “blood bath” are some examples of sensationalistic statements from media articles of capital cases trials. Cases in which, if found guilty, the defendant could be sentenced to the death penalty, either by lethal injection, electrocution, hanging, in a gas chamber, or by the firing squad. The Sixth Amendment of the U.S. Constitution protects citizens from unfair and long legal processes by granting those accused speedy and public trials, a jury of their peers, legal representation, to be informed of the cause of the charges, and the ability to confront witnesses. The amendment also gives the accused fair opportunities to defend themselves, where convictions are only granted if an impartial jury finds the crime has been proven beyond a reasonable doubt. The amendment guarantees the defendant unbiased jurors who will be open to the evidence presented at trial. But how can jurors form their own opinions when they are influenced by sensationalistic statements? Can jurors avoid forming opinions about key aspects of the case, such as the defendant’s guilt, if the media has already found them guilty? The defendant’s presumption of innocence is at stake if this type of publicity influences jurors' decision-making before trial, depriving the accused of their Sixth Amendment protections, and possibly affecting the outcomes of capital cases. 

An important theory is the Crime Master Narrative Theory, which posits that society and even the criminal justice system sees criminal behavior as the result of an individual and their badness, their free will to harm, and antisocial behaviors, it ignores the social factors that might influence these choices and holds the offender accountable for their actions making them entirely deserving of the sentence/punishment imposed on them. News titles describing defendants as “monsters” and “evil”, classing them as “death-worthy”, and decontextualizing their actions, reflects the unbalanced representation of crime towards those accused, merely exploiting the sensationalistic aspects of crime, ultimately biasing readers and threating the defendant’s right to a fair trial, making them guilty before they can defend themselves.  

The American Bar Association has recognized that pretrial publicity can negatively affect a defendant’s right to a fair trial. To help remedy this, judges can allow a change of venue, or the relocation of the trial to a location where the case has received less publicity. Although it is the most effective way to eliminate bias, generally changes of venues are difficult to obtain, due to high costs, inconvenience for court personnel and witnesses, and the community’s desire to see justice. 

To examine the relationship between pretrial publicity and venue changes on capital cases, Bakhshay and Haney (2018) examined 1,831 newspaper articles from 20 California capital cases between 1979 and 2005 in which change of venue motions were filed. Each case varied in terms of the nature and demographic characteristics of the victims and defendants.   

For each case, researchers noted the content of pretrial newspaper publicity and the number of public files and determined the amount of different types of information found in the articles: negative information, such as prior arrests, alleged prior confessions, opinions of defendant's guilt, and sensational descriptions; positive information, such as positive character statements; and neutral information, like facts of the case reported in a detached, objective matter. They also noted the sources of the stories, whether the trial was moved, and the final case outcomes (death penalty or life in prison).   

The results showed that 75% of all the articles analyzed included some form of negative pretrial publicity while 19% included positive pretrial publicity. Factual details (i.e., neutral statements) about the crime were mentioned in 91% of all articles. Change of venue motions were denied in 13 of the 19 cases, meaning only six cases were moved. Of the ten cases with the largest amount of negative publicity about the defendant, only one was moved to a different venue.  In the cases with venue changes, one resulted in an acquittal, eight out of twelve resulted in death sentences, and four resulted in life sentences. Although five out of the six cases where the change of venue was granted resulted in guilty verdicts, only one of the remaining five resulted in a death sentence, with the other four resulting in life prison sentences.  

Negative and sensationalistic publicity is present during capital cases trials, and it is expected, the public likes melodrama and exaggeration. But by publishing these narratives that focus on sensationalism and are based on the Crime Master Narrative Theory, which dehumanizes and sentences defendants before they even go to trial. Criminal defendants, especially those on trial for death penalty cases, are deprived of basic rights such as an impartial jury, a fair trial, and especially of jurors unbiased and open to the evidence presented at trial. Let’s remember that the American criminal justice system is based on the “presumption of innocence,” which goes hand in hand with the Sixth Amendment, which is why it is so important to find judicial remedies as well as make them less challenging to be granted, that allow criminal defendants to stand a chance to have an impartial trial, by protecting them of threats of prejudicial pretrial publicity, and by not sentencing them before their case is heard.