Free press-fair trial : a staff report


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Free press-fair trial : a staff report
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United States -- Congress. -- Senate. -- Committee on the Judiciary. -- Subcommittee on Constitutional Rights
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At head of title: 94th Congress, 2d session,. Committee print.
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of the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, Ninety-fourth Congress, second session, October 1976.

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JAMES 0. EASTLAND, Mississippi, Chairman

PHILIP A. HART, Michigan
EDWARD M. KENNEDY, Massachusetts
ROBERT C. BYRD, West Virginia
JOHN V. TUNNEY, California

HUGH SCOTT, Pennsylvania
STROM THURMOND, South Carolina


JOHN V. TUNNEY, California, Chairman

EDWARD M. KENNEDY, Massachusetts
PHILIP A. HART, Michigan

HUGH SCOTT, Pennsylvania
STROM THURMOND, South Carolina

JANE L. FRANK, Chief Counsel and Staff Director
ANNE H. SULI-rIVAN, Professional Staff Member
MARK E. KALMANSOHN, Research Assitarnt
DEAN DRAKE, Chief Clerk



"[F]ree speech and fair trials are two of the most cherished policies
of our civilization," Justice Black once observed, "and it would be a
trying task to choose between them." While a democratic society must
continually weigh the right of the individual against the societal in-
terest, it is the Subcommittee's view that in the occasional collisions
between free press and fair trial, neither of these "cherished policies"
need yield to the other. It is our further belief that the value of these
two great freedoms is derived in part from the fusion of the individual
with the social interest. The First Amendment provide. that an in-
formed populace be politically, intellectually, and spiritually free;
the Sixth confers upon the lonely accused standing before the awe-
some tribunal of the state the right to an open and impartial trial of
his peers which, in turn, insures the public's faith in the integrity of
the judicial system.
In recent years with the rise of modern communications and news-
gathering techniques, information concerning a trial is much more
;readily and broadly disseminated, often on a national scale. While this
broad dissemination can serve to preserve the integrity of the judicial
proceeding, it may, on occasion, work against the defendant. The
right to an impartial jury, for example, may not be served by extensive
pretrial publicity.
The recent Nebraska Press Association et al. v. Stuart decision only
increases the necessity of resolving the dilemma posed by the free
press-fair trial controversy. In Nebraska v. Stuart, the Court dealt only
with direct prior restraints upon the press. It did not confront the
issue of closed proceedings. Neither did it address itself to the problems
raised by the issuance of restrictive orders upon trial participants.
Both these procedures constitute a serious backdoor threat to First
Amendment interests. In all probability, they also presage the next
wave of free press-fair trial litigation.
For these reasons, I requested the staff of the Constitutional Rights
Subcommittee to investigate the free press-fair trial controversy.
Drawing upon research by Prof. A. E. Dick Howard of the University
of Virginia Law School and its own study in this report, the Subcom-
mittee recommends appropriate legislative guidelines to safeguard the
First Amendment rights of trial participants while also preserving the
fair trial rights of defendants. The Subcommittee hopes that enact-
ment of these legislative standards will help to avert future collisions
between First and Sixth Amendment freedoms.
CUhairman, Constitutional Rights Subcomrinttee.

Digitized by the Internet Archive
in 2013


Preface- ------------------------------------------------------ inI
I. Prior restraints: The Constitutional Rights Subcommittee opposes
any prior restraints upon the press in the free press-fair trial context- 1
II. Subsequent punishment for contempt: The Constitutional Rights
Subcommittee opposes the use of subsequent punishment of the
press for publication when no restrictive orders have been issued-- 5
III. Restrictive orders: The Constitutional Rights Subcommittee recom-
mends the enactment of legislation for the issuance of restrictive
orders upon trial participants- -------------------------------- 7
Legislative standard ------------------------------------- 8
Explanation of Standard I-------------------------------- 9
Probable cause-Section IA(1) (a) and (b)-------------- 9
Impermissible prejudice-Section IA(1)(b)-------------- 9
Alternative measures-Section IA(1) (c) ----------------- 10
Notice of a hearing on a motion to issue a restrictive
order-I B(1) -------------------------------------11
Findings of fact-I B(2) ---------------------------- 11
Interlocutory appeal-Section I B(3)------------------ 11
Standing for the press-I C--------------------------- 11
Subsequent punishment-II -------------------------- 12
Citing reporters for contempt as an enforcement procedure- 12
Restrictive orders on the defendant-------------------- 12
IV. Alternative methods of protecting free press-fair trial interests------ 15
Continuance -------------------------------------------- 16
Waiver of jury trial---------------------------------------- 16
Severance ----------------------------------------------16
Change of venue ----------------------------------------- 17
Change of venire------------------------------------------ 17
Voir dire------------------------------------------------ 18
Peremptory challenges------------------------------------- 18
Sequestration --------------------------------------------18
Admonition to the jurors----------------------------------- 19
V. Closed proceedings-------------------------------------------- 21
Legislative standard--------------------------------------- 21
Explanation of Standard II --------------------------------- 22
Closed proceedings-A(1) (a) and (b)-------------------- 22
De minimis secrecy----------------------------------- 22
Conclusion------------------------------------------- 22


On June 29, 1976, the U.S. Supreme Court reaffirmed its traditional
hostility to prior restraints upon the press. In Nebraska Press Associa-
tion v. Stuart, it unanimously ruled that a Nebraska judge's restric-
tive order curbing news stories on a pending criminal trial was un-
constitutional. In announcing this decision, the Court declared that
"prior restraints on speech and publication are the most serious and
least tolerable infringement on first amendment rights." 1 For while
the threat of subsequent punishment "chills" speech, the Court
contended, prior restraint "freezes" it.
Yet the Court stopped short of adopting a general rule banning all
prior restraints on the press in the fair trial context. A majority hinted
that given the proper circumstances they would endorse such a policy,
but in this case the Court refused to foreclose the "possibility of
showing the kind of threat to fair trial rights that would possess the
requisite degree of certainty to justify restraints." 2
In this report, the subcommittee assesses the issues not conclusively
resolved or, in some cases, not even addressed in Nebraska v. Stuart.
It is our view that prior restraints on the press are never justified in
the fair trial context. Nor is subsequent punishment of the press for
publication where no restrictive orders have been issued. In some
circumstances restrictive orders on trial participants may be justified,
but only if they conform to rigorous legislatively enacted guide-
lines. Our view is similar for the closing of trial proceedings and the
sealing of court records.
The major portion of this report presents the case for, and substance
of, legislative guidelines. No doubt, the appropriateness of the guide-
lines will be the subject of considerable debate within the press and
legal communities. And so it should be. The subcommittee hopes that
the specific legislative proposals recommended in the report will assist
in advancing this debate and in assuring that a just course is charted.
1 Yebraska Press Association v. Stuart, 424 U.S. -, -96 S. Ct. 2791, 2802 (1976).
2 Ibid., 2808.

In Near v. Minnesota, the first case involving press censorship to
come before the Supreme Court, Chief Justice Hughes writing for the
majority observed that "the chief purpose of the first amendment's
guaranty is to prevent previous restraints upon publication." Hughes
was enunciating the uniquely American conviction, a conviction deeply
rooted in the national ethic, that an unfettered and independent press
is essential to the maintenance of a free society. Accordingly, the press
has always occupied a special place in the American system. In the
exercise of its power to investigate and criticize the Government's
legislative, executive, and judicial functions, it has served as the
guardian of our democratic principles. Not only has it sought out and
revealed governmental corruption: it has also been a primary vehicle
for social change. "Those who won our independence believed * *
that public discussion is a political duty," Justice Brandeis wtote in a
recent decision, "and that this should be a fundamental principle of
the American Government." 4
The advantages of free press coverage of criminal trials are many.
The defendant is protected from intimidation by the prosecution.
Society is exposed to the workings of the criminal justice system.
Those who would commit similar crimes may be deterred by observing
that some get caught. And, those who would change the system can
collect examples of specific instances where the laws or the courts or
the legal profession have failed.
There are also some disadvantages of unfettered press coverage of
criminal trials-primarily the prejudicial effect such publicity may
have on a defendant's right to a fair trial. For, like other institutions,
the press is capable of error. There are occasions where the reporting
of a criminal trial is excessive, inaccurate, unfair, or indiscreet. But
these problems should be dealt with by setting rigorous professional
standards and disciplining those who fail to live up to them. Prior
restraints are too harsh a remedy, their mark too indelible for them
to be appropriate here. In this regard, the subcommittee supports
self-policing by the press itself rather than intervention by a trial
Self-policing is an especially judicious course when we consider that
the Supreme Court itself tolerates a certain level of jury prejudice.
This is consistent -with the general supposition that the more intelligent
a prospective juror is, the more likely it is that he will have read about
a pending criminal case and formed'some opinion on it. It should also
be noted that even the most intense press coverage usually reflects
diverse viewpoints and can lead to prejudgment on both sides of a
I Near v. Minnesota, 283 U.S. 697,713 (1931).
4 Mr. Justice Brandeis, concurring, Whitify v. California 274 U.S. 357, 375 (1927).

case. Moreover, even where sensational press coverage has led jurors
to form preconceived notions as to a defendant's guilt, research has
indicated that the experience of the trial itself can reduce prejudice
to the vanishing point.5 It is also possible that the unconscious preju-
dices to which all of us are to some extent subject may ultimately have
more effect upon a juror's decision than anything he reads in the
newspaper during the course of a trial.
But even in those instances in which the Court has determined that
jury prejudice reached the impermissible level, remedies other than
prior restraints have generally been recommended.
In the celebrated Sheppard murder trial, the following conditions
prevailed. Throughout the entire pretrial period virulent and incrimi-
nating publicity about the defendant and the murder of his wife made
the case notorious. The news media frequently aired charges and
countercharges in addition to those for which the defendant was
tried. Three months before trial, the defendant was examined for
more than 5 hours without counsel in a televised 3-day inquest con-
ducted before an audience of several hundred spectators in a gymna-
sium. Over 3 weeks before the trial the newspapers published the
names and addresses of prospective jurors causing them to receive
letters and telephone calls about the case. Newsmen were allowed to
take over almost the entire small courtroom, harrassing the defendant,
and most of the trial participants. Twenty reporters were assigned
seats by the court within the bar and in close proximity to the jury
and counsel, precluding privacy between the defendant and his coun-
sel. A broadcasting station was assigned space next to the jury room.
Pervasive publicity was given to the case throughout the trial, most of
it involving incriminating evidence not introduced at the trial. At
least some of this highly prejudicial publicity reached the jurors.
From the day of Mrs. Sheppard's murder, some of the more striking
newspaper headlines dealt with: (1) Sheppard's refusal to take a lie
detector test; (2) scientific blood tests (never presented as evidence
at trial) refuting Sheppard's version of events; (3) Sheppard's general
uncooperativeness with police authorities; (4) Sheppard's extramarital
love affairs as a motive for the crime.
Notwithstanding, the Supreme Court recommended only the use of
traditional protection measures. It ruled that the trial court should
have: (1) adopted stricter rules governing the use of the courtroom by
newsmen; (2) insulated the witnesses; (3) made some effort to control
the release of leads, information, and gossip to the press by police
officers, witnesses, and counsel; (4) raised with counsel the possibility
of jury sequestration; (5) considered a continuance or a new trial.
"We conclude that these procedures would have been sufficient to
guarantee Sheppard a fair trial," Justice Clark wrote for the majority,
"and so do not consider what sanctions might be available against a
recalcitrant press * *" 6
6 Dziamba, "The Free Press-Fair Trial Controversy-An Empirical Approach," 2 Conn. L. Rev. 351,
pp. 366-7.
SSheppard v. Maxwell, 384 U.S. 358 (1966).


The subcommittee fully agrees with the court that alternatives less
restrictive upon press freedoms should be invoked in the fair trial
context. It is the purpose of this report, moreover, to encourage the
broader use of these alternatives. While we do not claim that these
measures will in every case prevent jury prejudice, we believe that
those cases in which the defendant's rights cannot be adequately
protected by less restrictive means will be few. We also believe that
the cost of mistrials in isolated instances is far less than the cost of
opening the door to judicial discretion in the imposition of prior
restraints upon the press.

Generally, in constitutional adjudication, prior restraints against
publication have been considered more damaging to first amendment
liberties than subsequent punishment. As the Supreme Court recently
The presumption against prior restraints is heavier-and the degree of protec-
tion broader-than that against limits on expression imposed by criminal penal-
ties. Behind the distinction is a theory deeply etched in our law: a free society
prefers to punish the few who abuse rights of speech after they break the law
than to throttle them and all others beforehand . 7
The concept behind this distinction is that in subsequent punish-
ment cases, at least the information in question is released and dis-
seminated: it is allowed to enter the marketplace of ideas.
And yet, while this punishment is less damaging to first amendment
freedoms than the imposition of prior restraints, it is still an unaccept-
able means of restraining publication. Since the subsequent contempt
procedure provides the press with no guidelines whatsoever as to
which publications are permissible and which are not, it encourages
self-censorship. The chilling effect resulting from subsequent punish-
ment, therefore, may be tantamount to an actual prior restraint.
For this reason, the subcommittee opposes the use of subsequent
punishment of the press for publication when no restrictive orders
have been issued.
7 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559 (1975).

As with prior restraints upon the press, restrictive orders upon
trial participants also pose problems to first amendment liberties.
In addition to trial participants' personal freedom of speech, freedom
of the press, and the public's right to know are affected by restrictive
orders. Indeed, the imposition of restraints upon the speech of individ-
uals connected with a trial can inhibit press coverage almost to the
same extent as restraint placed directly upon the publishers of news.
While the restriction upon the press is an indirect one, its tendency
to cut off news at the source may have the same practical effect as
the imposition of a prior restraint.
In recent years, there has been a marked increase in the number of
restrictive orders on trial participants.8 When these orders have
been issued, the courts have usually cited the Sheppard case as justi-
fication. There, Justice Clark noted that-
The trial court might well have proscribed extrajudicial statements by any
lawyer, party, witness, or court official which divulged prejudicial matters.'
In the past, there has been no uniform standard used by the courts
in the issuance of restrictive orders. Some courts have required that
there be only a "reasonable likelihood" that prejudicial news affect
the impaneling of a jury.'10 Others have tried to adapt the "clear and
present danger" standard or a hybrid thereof. It is the subcommittee's
view that both these modes of review are seriously deficient as cur-
rently applied. The reasonable likelihood criterion is far too lenient
as a justification for infringement upon first amendment freedoms.
The clear and present danger formula in the absence of further defini-
tion is too vague and affords inadequate guidance to judges issuing
restrictive orders.
The subcommittee therefore proposes a standard which derives
from the clear and present danger test but which gives the test
specificity. The standard incorporates the recent criterion used by
the U.S. Seventh Circuit Court of Appeals in Chicago Council of
Lawvyers v. Bauer for the issuance of restrictive orders on trial partici-
pants. In that case, the court held that restrictive orders should be
issued only where the statements to be restrained constituted a serious
and imminent threat of interference with the fair administration of
justice." The subcommittee u-es the general rule cited in Bauer
ut specifies what is meant by "serious" and "imminent," thereby
* One such order was issued in 1972: 7 were issued in 1973; 11 in 1974; and 18 in 1975.
* Sheppard v. MAizw-fl, op. cit., p. 361.
10 U.S. v. Tij.rira, 412 F. 2d 661, 666 (10th Cir.), cert. denied, 396 U.S. 990 (1969).
UI Chicapo Council1 of Lawyers v. Bauer, 522 F.2d 242 k7th Cir. 1'175., cert. denied sub nom. Cunningham v;-
Chicago Council of Lawyrs, 44 U.S.L.W. 3756 i.June 30. 1976) (No. 75-12-tI.

eliminating the vagueness and ambiguity which can adhere to these
This standard would apply to all Federal courts. In addition,
Congress has several options with regard to the use of the standard in
State courts. It could recommend the standard as a model for
companion legislation in the States, recognizing that the Supreme
Court is likely to define the State court requirements for protection of
first amendment freedoms when they clash with sixth amendment
rights. On the other hand, Congress might wish to invoke its enforce-
ment power under the 14th amendment to assist the Court in defining
the procedures necessary to protect 1st amendment rights as they
are applied to the States under the 14th amendment. Since the
Supreme Court has not resolved the precise constitutional claims
addressed in this standard, it is possible that it would defer to Congress'
determination in this regard.
I. A Restrictive Order Upon Trial Participants may not Issue Unless:
A. (Substantive provisions)
1. The prejudicial impact of the extrajudicial statement constitutes
a serious and imminent threat to the fair administration of justice in
(a) there is probable cause to believe that the extrajudicial
statement will reach the jurors or potential jurors;
(b) there is probable cause to believe that such statement upon
reaching the jurors or potential jurors will create an imper-
missible level of prejudice; and,
(c) the prejudicial impact of the extrajudicial statement cannot
be avoided or counteracted by alternative means less restrictive
upon first amendment rights.
(1) In assessing whether other means less restrictive upon
first amendment rights are available, the court must con-
sider whether the rights guaranteed by the fifth and sixth
amendments can be adequately preserved through-
(a) continuance; (b) waiver of jury trial by the de-
fendant; (c) severance; (d) change of venue; (e) change
of venire; (f) an expanded voir dire; (g) additional per-
emptory challenges; (h) sequestration of the jury; (i) ad-
monition to the jurors; and (j) other procedures less
restrictive upon first amendment freedoms.
B. (Procedural provisions)
1. The court gives notice to interested parties of a hearing on any
motion to issue the order;
2. The judge states for the record his findings of fact justifying such
order; and
3. There is available a procedure for an expedited, interlocutory
appeal concerning the merits of such order; and, the appeal process is
designed to produce a prompt judicial decision.
C. (Standing provision).
1. Members of the press are accorded standing to litigate the pro-
priety of such order.
II. If Any Order Issued as Prorided in Section I is Subsequently Judged
Inralid by an Appellate Court, No Person Shall be Punishedfor any
Violation of Such Order.

These sections are designed to guide a judge through a preliminary
determination concerning whether a restrictive order may ultimately
be necessary. Before considering the availability of alternative pro-
tective measures, the judge must first ask: (1) is there probable cause
to believe that the envisioned extrajudicial statement will reach the
jurors or potential jurors? and, if so, (2) is there probable cau .e to
believe that this statement will create an impermissible level of
prejudice? If probable cause cannot be established in both instances,
the judicial inquiry regarding the feasibility of a restrictive order
must fail at this point. Even if probable cause is established concerning
both sections, the mandatory requirement of section A(1)(c) must
also be met.
The Supreme Court has already considered the concept of prob-
ability as it relates to a fair trial. In Estes v. Texas, a case dealing with
the effect of prejudicial publicity upon a jury, the Court declared
that even the "probability of unfairness" was sufficient to constitute
a breach of the fair trial guarantee.12 In the recent Nebraska v. Stuart
decision, it was the lower court's failure to show the "probability"
of harmful effects of pretrial publicity that defeated a restrictive order
upon the press. "Reasonable minds can have few doubts about the
gravity of the evil pretrial publicity can work," the Court stated,
"but the probability that it would do so here was not demonstrated
with the degree of certainty our cases on prior restraint require." 13
The trial judge failed to establish or to examine the "probable extent
of publicity," "the probable nature of the publicity," "the probable
efficacy of the measures short of prior restraint," and the "probable
efficacy of prior restraint." 14 This notion of probability was also
recently extended to the first amendment context and refined into a
precise standard of review: dissenting in a case involving reporters'
privilege Justice Stewart proposed that, in addition to other showings,
the Government be required to demonstrate probable cause to believe
that a reporter has information clearly relevant to a specific probable
violation of the law.15 Utilizing this test, in the subcommittee's
standard, before a judge may proceed to examine the other elements
of the standard, he must preliminarily determine that probable cause
has been fulfilled as to sections A(1)(a)(b).

In Murphy v. Florida, the Court clarified the burden which must be
met before a conviction would be set aside because of prejudicial
publicity. In that case, the defendant, who had been convicted in a
State court of robbery, contended that he had been denied a fair trial
because the jurors had learned from news accounts of prior felony
convictions and certain facts about the robbery charge. The Court held
12 Estes v. Texas, 381 U.S. 532, 542-543 (1965).
Is Nebraska Press Association v. Stuart, op. cit., p. 2807.
Ibid., pp. 2804-2806.
13 Branzburg v. Hayes, 408 U.S. 665, 743 (1972). The Court has recognized that the issues in this ease were
similar to those in the restrictive order context. (See Timea-Picayune Publishing Cup. v. Sciulingkamp, 419
U.S. 1301,1307 (1974).)


that juror exposure to information about a State defendant's prior
convictions or to news accounts of the crime with which he was
charged did not alone presumptively deprive the defendant of due
To hold that the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court.16
In the Court's view, which the subcommittee shares, impermissible
prejudice would seem to be that degree of prejudice which prevents a
juror or potential juror from "laying aside" past impressions or opinions
and rendering a verdict based on the evidence present in court. While
the judge's determination of such prejudice is inevitably a subjective
one, it is the subcommittee's view that the impermissible prejudice
requirement as defined in the Murphy case is a difficult one to meet.
This is especially true because measures designed to prevent or
ameliorate prejudice must be utilized wherever available.

It is the subcommittee's view that the use of the measures listed
in section I A(1)(c) of the standard will obviate the necessity for
restrictive orders. In most instances, the existence of the threat of
prejudice can be handled by one or more of these alternative means:
A continuance (temporary postponement) of the trial can
result in the dissipation of prejudicial publicity.
A waiver of jury trial by the defendant, in preference for a bench
trial by an "unemotional trier," can also protect the defendant
against damaging publicity.
Severance of the trial into separate trials can protect a de-
fendant(s) from the taint of prejudicial publicity concerning
another defendantss.
A change of venue to another county can often cure the harmful
effect of pretrial publicity.
A change of venire (panel of potential jurors) can eliminate the
unwieldy procedure of transferring the entire trial while still
reducing the effects of prejudicial publicity by obtaining jurors
from another area.
An expanded woir dire procedure can provide counsel with a
better opportunity to probe prejudice among prospective jurors.
The granting of additional peremptory challenges can also
assist counsel in selecting an impartial jury.
Sequestration of the jury can insulate jurors from a prejudicial
atmosphere potentially damaging to the defendant's interest.
Admonition to the jurors, as a last reminder that the case
should be decided solely upon the evidence presented in court,
can help to quell the effects of prejudicial publicity.
In addition to these measures, the standard requires that any
other procedures available which are less suppressive of first amend-
ment liberties be used in lieu of restrictive orders.
16 Murphy v. Florida, 421 U.S. 794, 800 (1975). Quoting Irvin v. Doud, 366 U.S. 717, 723 (1961).

Each of these alternative methods must be considered by the court
and the judge must record specific findings of fact concerning their
substantive inadequacy before a restrictive order can issue. Such a
procedure is compatible with the Supreme Court's requirement that
the least restrictive measures available be employed in the first
amendment context.17

I B(1)
Before issuing a restrictive order, the judge must give notice of a
hearing on the motion to issue it to all the trial participants. Written
views concerning the motion could also be filed by members of the
press at this hearing. It is the subcommittee's view that such a pro-
cedure would dramatically reduce ill-advised restrictive orders as well
as serve to eliminate the need for an interlocutory appeal since, in
many instances, those opposing the orders would be afforded an
opportunity to hear the reasons why those requesting the orders
consider them necessary. The same would apply for closed proceedings.

The requirement that a judge report his findings of fact reduces for
the record the specific arguments for a secret proceeding. This can be
an invaluable tool for the individual seeking to appeal a decision
imposing a restrictive order. Indeed, in the absence of such a provision,
an interlocutory appeal would be a hollow guarantee.

It is the subcommittee's view that an interlocutory appeal is neces-
sary to protect first amendment interests. An expeditious ruling on the
validity of a restrictive order reduces the problem of timeliness of
publication, while obviating the need for a stay of the trial.
I B (3) prescribes that the appeal process be designed to produce a
prompt judicial decision. Just as a restrictive order should last no
longer than is absolutely necessary, the period of judicial review of
such order should also be as brief as possible.

Not only do restrictive orders suppress the speech of trial partici-
pants, they also infringe upon the freedom of the press by cutting off
news at the source. Perceiving this threat to the press, some courts
have accorded the press standing to contest the issuance of restrictive
orders upon trial participants. Most courts, however, have failed to do
this. Judges argue that since the press is not a party to the trial, since it
is not directly restrained by restrictive orders, and since injury to it is
not "concrete," standing is not justified. The subcommittee disagrees.
We propose that where restrictive orders are issued upon trial partici-
pants, the pres-, along with those upon whom the orders fall, should be
accorded standing to litigate the validity of the restriction. To deny
17 See Shelton v. Tucker, 364 U.S. 479, 488 (1960).


standing to the press is, in our view, to sanction restraint upon a vital
first amendment interest without the appropriate procedural safe-
The subcommittee considered extending standing to the public as
well as to the press. While such standing could entail problems, it is a
matter which probably should be investigated further when the legis-
lation is introduced.
This section is designed to correct current practice and to provide
greater protection of first amendment liberties. In the past, a person
violating court directives later adjudged invalid has still been held in
contempt.'8 While this practice may be valid in other situations,
its effect in the free press-fair trial context would be to chill the exer-
cise of first amendment rights. Because the subcommittee standard
provides for an expedited appeal, it would in practice stay any punish-
ment for contempt until the appeal process has been exhausted.

While most courts have been reluctant to accord press standing to
protest restrictive orders upon trial participants, they have not been
reluctant to hold the press responsible when such orders are violated.
Reporters have recently been cited for contempt when refusing to
disclose which of the trial participants divulged restricted information
to the press. The subcommittee believes that punishing a reporter
in this way is ill-advised and inappropriate. If a restrictive order on a
trial participant has not been complied with, it is the trial participant
and not the reporter who is at fault. The appearance of restricted
information in a publication is merely the consequence of the
violation. In the subcommittee's view, only the trial participant
should be subject to punishment. No member of the press should be
held in contempt for refusing to disclose the identity of persons who
have transmitted information prohibited under a restrictive order
or for refusing to disclose the content of such information. To hold
reporters responsible in such matters would be to undermine severely
their right to gather and report the news.
The subcommittee considered exempting the defendant altogether
from the provisions of this bill. It was decided, however, that an
absolute ban on the issuance of restrictive orders upon the defense
would be unwise. Even so, the judge should exercise extreme caution
in issuing restrictive orders upon those associated with the defense.
It is, after all, primarily the defendant's right to a fair trial which the
sixth amendment guarantees. Moreover, in criminal trials, the
defendant is opposed by the full power of the State and it is only
fair that he be given maximum latitude in addressing himself to his
Is Walker v. City of Birmingham, 388 U.S. 307 (1967). See also United States v. Dickinson, 465 F. 2d496 (5tb
Cir. 1972), cert. denied, 414 U.S. 979 (1u73).

defense. On the other hand, the public has a right to a judicial process
untainted by prejudice against the prosecution, especially since the
Constitution secures so many rights for the protection of the defendant.
When issuing orders upon the defense, the judge should distinguish
between the defendant and his counsel and the defense witnesses.
We must presume that the defendant will not knowingly make extra-
judicial statements harmful to his own best interest. In some instances,
however, the defense witness may not hold the defendant's interest
paramount. Indeed, in the recent Patty Hearst trial, one of the psychi-
atrists testifying for the prosecution had indicated an initial willingness
to testify for either side. The less harmonious the interests of the
defendant and the witness, the less hesitant the judge should be in
issuing restrictive orders upon the witness. In all cases, however,
extreme caution should be employed in restricting statements of the

A panoply of remedies has traditionally been employed by the
udiciary to avert all forms of potential prejudice to a fair trial. Only
recently have the courts relied upon the more repres-ive procedure
of issuing restrictive orders to prevent that form of prejudice which
,results from a highly publicized trial. In a recent NBC documentary
in fair trial-free press, one of the judges interviewed admitted that
restrictive orders had become so commonplace that many attorneys
felt they were shirking their professional responsibility to their client
if they neglected to request the issuance of such orders.
An interview of trial judges concerning their assecsment of
the effectiveness of traditional measures as means of guarding
the defendant against prejudicial publicity revealed the following
results: 19

Number of judges effective (percent)
Continuance...------.--....---.----- ----------------.----.. 251 82.1
*Severance-.-.. --.--............................ ..-----.. 306 77.8
Change of venue--------------...------------...---........ ---------------------. 184 77.2
Venire from another county..--------------------------.------... .----------- 58 74.1
Voir dire.... ...... .---...--.. ..--.. -.................--- .... 408 47.6
*Sequestration-...------..... .....-.. ....- -............... 259 86.9
*Admonition...........-..-........-.......................... .... 419 62.1

By the judiciary's own account, conventional remedies are for the
most part effectual in preventing prejudicial publicity. While some
measures are considered more effective than others, this rating is based
n the sole use of the method in question. If each of these procedures
were used in conjunction with other methods, the overall effectiveness
should increase considerably. Moreover, it is the subcommittee's view
that the traditional devices for warding off prejudice can be improved
|o the extent that a careful administering of them will reduce the
necessity for restrictive orders almost to the vanishing point. In sug-
Sesting improvements in these procedures, the subcommittee has
adopted the court's dicta set forth in Sheppard v. Maaxwuell that the
Traditional methods be utilized whenever there is a reasonable likeli-
,ood of prejudice.20
10 F. Siebert, W. Wilcox, G. Hough IIT, "Free Press Fair Trial" 14 (C. Bush ed. 1970).
30 Sheppard v. MaxwdiU, op. cit., p. 363.


Where prejudicial publicity is so prevalent that it is impossible to
conduct a fair trial anywhere in the State, a continuance or temporary
postponement of the trial may be in order. The effectiveness of this
device is directly proportional to the endurance of the prejudicial
publicity and the public's interest in the case.
Title 18 United States Code, section 3161 permits a continuance
The ends of justice served by taking such action outweigh the best interest of
the public and the defendant in a speedy trial-
And where failure to grant a continuance would be "likely" to
"result in a miscarriage of justice."
In the subcommittee's view, this standard is both vague and
ambiguous. We therefore propose that a continuance be granted when-
ever there is a reasonable likelihood that, in the absence of such relief,
prejudicial publicity will prevent a fair trial and when there is a
reasonable likelihood that a fair trial will be possible after such con-
If none of the above procedures are effective and the prospects for a
fair jury trial are doubtful, the defendant may waive his right to trial
by jury. Rule 23(a) of the Federal Rules of Criminal Procedure allows
waiver "with the approval of the court and the consent of the gov-
Waiver of jury trial is not a happy solution to problems of prejudice
since it forces the defendant to choose between two important con-
stitutional rights-the right to a fair and impartial trial and the right
to trial by jury. Nevertheless, since the sixth amendment guarantee is
intended primarily to protect the right of the individual defendant, the
subcommittee proposes that a defendant be allowed to waive jury trial
(1) There is a reasonable likelihood that prejudicial publicity will
adversely affect the outcome of the trial, and
(2) the waiver is made in writing, knowingly and voluntarily.

When there are multiple defendants in a case, prejudicial publicity
concerning one or more defendants may spill over and harm the others.,
Often a severance or separate trials for joint defendants is in order.
Rule 14 of the Federal Rules of Criminal Procedure provides that the
court may order separate trials when-
It appears that a defendant or the Government is prejudiced by a joinder of
offenses or of defendants in an indictment or information or by such joinder for
trial together.
In conformity with the reasonable likelihood standard espoused by
the Court and suggested in the above procedures, the subcommittee
proposes that a severance of a trial be permitted when there is a rea-
sonable likelihood that one or more of the defendants will not receive a
fair trial due to prejudicial publicity against another defendantss.


A change of venue, or the transfer of the trial to another county
or judicial division, is used primarily to eliminate the effects of local
prejudicial publicity. While this procedure is often ineffective where
there has been a statewide saturation of publicity, it can be very
useful when the prejudicial news is localized.
Some State statutes restrict the availability of this device. Nebraska
law, for example, permits a change of venue only to adjoining counties.
Frequently adjacent counties are just as exposed to pretrial publicity
as the original place of venue and moving the trial there would serve no
useful purpose. In the Nebraska v. Stuart case, the Court attacked
these restrictive statutes in declaring that "State laws restricting venue
must on occasion yield to the constitutional requirement that the State
afford a fair trial."21 In stating this, the Court was reaffirming the
principle that under the Constitution a defendant must be given an
opportunity to show that a change of venue is warranted, and if that
is shown, to obtain the change.
In addition to guaranteeing due process in this context, the Court
has also established guidelines for what conditions justify a change of
venue. The constitutional standard for change of venue provides
that "* * where there is a reasonable likelihood that the prejudicial
news prior to trial will prevent a fair trial, the judge should continue
the case until the threat abates or transfer it to another county not so
permeated with publicity."22 In contrast, Rule 21(a) of the Federal
Rules of Criminal Procedure prescribes a change of venue to another
judicial district only when the judge is "satisfied that there exists in
the district where the prosecution is pending so great a prejudice
against the defendant that he cannot obtain a fair and impartial
trial ** *"
The subcommittee questions the wisdom of a Federal standard
which permits a change of venue only when a judge is fully satisfied
that a fair trial is an impossibility in the district in which the crime
was committed. Such a standard fails to take into account that some
judges may be reluctant to grant changes of venue because of an
unwillingness to admit that they cannot guarantee a fair trial in their
own courtrooms. By requiring such admission, the standard discour-
ages the use of a procedure which can be less onerous than sequestra-
tion of the jury, continuance, or other expensive and inconvenient
The subcommittee sees no reason to inhibit the use of this effective
method of coping with prejudicial publicity. We therefore propose
that a motion for change of venue shall be granted whenever there
s a reasonable likelihood that the dissemination of prejudicial publicity
would damage the defendant's right to a fair trial in the absence of
uch relief.
This device is similar to a change of venue in that the panel of
potential jurors are selected from other judicial districts where it is
resumed the prejudicial publicity has not permeated. The jurors are
I Nebraska Press Assn. v. Stuart, op. cit., p. 2805 n. 7.
Sheppard v. Maxwell, op. cit., p. 363. See also Rideau v. Louisiana, 373 U.S.723, 727 (1963), and Irvin v.
Iowd, 366 U.S. 717, 728 (1961).

brought to the trial rather than the trial to the jurors. This method
eliminates the cumbersome procedure of transferring the entire trial
while still reducing the effects of local prejudice. It is a rarely used
device but is still a good alternative means of combating prejudicial
While a chance of venue is used to avoid the effects of prejudicial
publicity, 'oiro dire-the questioning of prospective jurors by coun-
sel-is used to eliminate in advance those jurors who are judged to
be biased for whatever reason.
Rule 24(a) of the Federal Rules of Criminal Procedure provides
that the court may permit voir dire by counsel or by the court itself.
Further inquiry is allowed as the court "deems proper."
The ABA Reardon Report notes a serious deficiency in the voir dire
procedure.23 The report points out that research has shown voir dire to
be relatively ineffective when the examination of each juror takes place
in the presence of other jurors. In view of this, the subcommittee pro-
poses that whenever there is a reasonable likelihood that some mem-
ber of the pool of potential jurors will be ineligible because of exposure
to prejudicial material, a voir dire shall be permitted where the
examination of each juror shall take place outside the presence of the
others. The subcommittee also recommends that in a sensational trial
context, counsel be given more leeway by the court to probe prejudice
on voir dire beyond the traditionally acceptable scope of examination.

Another method of eliminating biased jurors is through the issuance,
of peremptory challenges. This procedure allows counsel to dismiss
prospective jurors for whatever reason he sees fit. Rule 24(b) of the
Federal Rules of Criminal Procedure specifies that the number of
peremptory challenges to be accorded each side in a criminal pro-
ceeding depends upon the gravity of the offense: for example, 20
challenges are permitted in a murder trial, 3 where the offense is
punishable by not more than a year imprisonment. While these num-
bers are probably adequate for most trials, it should be noted that
the challenges allowed have usually been exhausted in the fair trial-
free press cases reaching the Supreme Court.
The subcommittee feels that this method of sifting out prejudice
among jurors should be at the full disposal of counsels for both the
defense and prosecution whenever necessary and, for this reason, we
recommend that whenever there is a reasonable likelihood that, due to
pervasive publicity, the allowed peremptory challenges will not be
adequate, a judge shall permit a number of such challenges sufficient
to counter jury bias.
Sequestration or insulation of the jury is usually employed as a
last resort. It is an expensive procedure which can entail considerable
hardship to the jurors. Nevertheless, it is a highly effective measure
where prejudicial publicity during trial is so widespread that no other
23 Advisory Committee on Fair Trial and Free Press, ABA Project on Minimum Standards for Criminal
Justice, Standards Relating to Fair Trial and Free Press (1968) (Approved Draft) (The "Reardon Report").


device is satisfactory. While the subcommittee encourages the use of
other procedures whenever possible, it proposes that when there is a
reasonable likelihood that an impermissible level of prejudicial
publicity cannot be avoided in the absence of such relief, a judge may
sequester the jury.
Another method used by the court to counter prejudice is the
judge's admonition to the jurors. This entails such things as instruc-
tions to the jurors at the beginning of the trial and periodically during
it not to read or listen to reports about the trial or the defendant, as
well as instructing them to disregard impermissible evidence raised
in court.
The potential benefit of such a procedure is enormous. For the
judge's final instructions are the last words uttered in the courtroom
before the jurors convene to determine the outcome of a case. It is the
subcommittee's view that such counseling from an authority figure
can exert a profound psychological influence upon the jurors and go a
long way toward quelling the effects of prejudicial publicity.
As is evident, there are numerous procedures available to prevent or
nullify the effects of prejudicial publicity. Many of these traditional
methods can be used at any stage in the judicial proceeding and all
of them are effective in certain specified circumstances. When used
intelligently and with the suggested modifications, these procedures
should dramatically reduce if not altogether eliminate the need for
restrictive orders upon trial participants.


Closing the judicial proceeding to both the press and the public is
another method employed by the judiciary to avoid prejudicial
publicity. In recent months, this procedure has been invoked with
increasing frequency, giving rise to the speculation that the courts
are attempting to avoid involvement in the restrictive order contro-
versy. Yet closed proceedings can be just as injurious to first
amendment interests as the promiscuous issuance of restrictive
orders. In both cases, the public is deprived of the right to know
certain specific information. And if the entire proceeding is con-
ducted in secret, the public lacks even a general knowledge of how the
trial is progressing. For these reasons, the subcommittee proposes the
following standard for closed proceedings, using the same basic
criteria as are suggested for the standard on restrictive orders.
A Judge May Not Close Any Proceeding, Whether at the Pretrial Level
or During the Trial Itself, Nor Seal Any Document Unless:
A. (Substantive provision)
1. The failure to close the proceeding or to seal the document
constitutes a serious and imminent threat to the fair administration
of justice in that-
(a) There is probable cause to believe that danger to the fair
trial rights of the defendant, or other specified interests would
result; and
(b) There is probable cause to believe that the danger specified
in A(1)(a) cannot be avoided or counteracted by alternative
means less restrictive upon first amendment rights.
(1) In assessing whether other means less restrictive upon
first amendment rights are available, the court must consider
whether the rights guaranteed by the fifth and sixth amend-
ments can be adequately preserved through-
(a) Continuance; (b) waiver of jury trial by the de-
fendant; (c) severance; (d) change of venue; (e) change
of venire; (f) an expanded voir dire; (g) additional pe-
remptory challenges; (h) sequestration of the jury; (i)
admonition to the jury; and (j) other procedures less
restrictive upon first amendment freedoms.
B. (Procedural provisions)
1. The court gives notice to interested parties of a hearing on any
motion to close any proceeding or to seal any) document.
2. The judge states for the record his findings of fact justifying the
closing or the sealing.
3. There is available a procedure for an expedited, interlocutor
appeal concerning the merits of the closing or the sealing; and, the
appeal process is designed to produce a prompt judicial dcci-ion.


C. (Standing provision)
1. Members of the press are accorded standing to litigate the pro-
priety of the closing or the sealing.
A(1)(a) This provision provides that no proceeding or part thereof
can be closed unless there is probable cause to believe that danger to
the fair trial rights of the defendant or other specified interests will
result. Other specified interests might include such things as the pro-
tection of juries from physical intimidation or harassment after con-
clusion of the trial, the protection of minors from exposure to testimony
regarding sexual offenses, or the guarding of information concerning
hijacking operations. Further consideration of this provision would in
all probability result in additional specific criteria.
A(1)(b) This provision provides that a judge shall not close any
proceeding or a part thereof unless there is probable cause to believe
that the alternative measures listed in this section would be ineffective
in avoiding the dangers specified in A(1)(a).
See standard I for discussions of sections B and C.

While the standard proposed for closed proceedings applies to the
closing of any part of a proceeding or the sealing of any part of a
document, the subcommittee recognizes that de minimis secrecy may
on occasion be warranted and that the burden upon the court posed
by this standard to invoke such secrecy may be excessive. This secrecy
might include such things as the excision of words from a document
which are not relevant to the issues at trial. If the relevancy of the
excised material is seriously contested, however, the secrecy should
not then be considered de minimis. In any event, the subcommittee
recommends that consideration be given to including additional pro-
visions in the standard to deal with this problem.
In the subcommittee's view, the sixth amendment right of an in-
dividual to a fair trial and the first amendment guarantee of a free
press are not incompatible. As suggested above, a careful administer-
ing of the traditional methods of combating prejudicial publicity
should allow both these freedoms to flourish. And in the end, these
"cherished policies" complement each other. A fair trial and an
efficient judicial process bolster society's faith in the kind of open
society which the first amendment was designed to protect; similarly,
the rights of a criminal defendant are protected by public scrutiny
of judicial proceedings a free press brings to bear.
Finally, it is the subcommittee's belief that the intersecting of
these two fundamental liberties reaffirms the genius of the Bill of
Rights. For not only do the provisions of this document secure the
individual against the potential tyranny of the State: they complement
each other and, by doing so, help to preserve society's faith in our
democratic form of government.


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