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The Media and the Criminal Justice System

The Media and the Criminal Justice System. JOUR3060 Communication Law & Regulation. CONFLICTING CONSTITUTIONAL GUARANTEES. 1 st Amendment: Congress shall make no law ... abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble… 6 th Amendment:

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The Media and the Criminal Justice System

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  1. The Media and the Criminal Justice System JOUR3060 Communication Law & Regulation

  2. CONFLICTING CONSTITUTIONAL GUARANTEES • 1st Amendment: • Congress shall make no law ...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble… • 6th Amendment: • 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 district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense • 9th Amendment: • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

  3. PRE-TRIAL PROCEEDINGS • Arrest / Charge • Discovery • Plea Bargaining • Motions • Voir Dire

  4. Trial: • opening arguments • evidence presented • testimony given • closing arguments • judgment rendered • Sentencing • Post-Trial • appeal? • serve sentence

  5. FREEDOM OF THE PRESS(Issues of Pretrial Publicity) • Sheppard v. Maxwell (1966) • http://www.oyez.org/cases/1960-1969/1965/1965_490 • 1:15 – 6:00

  6. FREEDOM OF THE PRESS • Estes vs. Texas (1965): broadcast media NOT allowed in court • Chandler vs. Florida (1981): courts MAY allow cameras to cover criminal trials • Gannett Co. v. DePasquale (1979): access to public trials • Richmond Newspapers v. Virginia (1980): access to criminal trials

  7. FREEDOM OF THE PRESS • Pre-Enterprise v. Superior Court I (1984): establish public’s right to witness jury selection in criminal trials • Waller v. Georgia (1984) • Press-Enterprise / Waller Test: Pre-trial proceedings presumed to be open, unless: • 1) overriding interest likely to be prejudiced • 2) closure is broader than necessary to protect interest • 3) alternatives to closure not considered • 4) trial court makes findings of fact to support closure • Press-Enterprise v. Superior Court II (1986): establish public’s right to witness pretrial hearings in criminal cases • Press-Enterprise II Test: Pre-trial proceedings cannot be closed, unless: • 1) specific, on-the-record findings justifying closure, • 2) closure necessary to preserve higher values, • 3) closure is narrowly tailored to serve that interest

  8. FREEDOM OF THE PRESS • Cincinnati Gas & Electric Co. v. General Electric Co. (1988): example of legitimate interest justifying closure • Craig v. Harney (1947): news articles not “clear and present danger” • Nebraska Press Association v. Stuart (1976): prior restraint of news coverage is unconstitutional • Zurcher v. Stanford Daily (1978): search of student paper office led to Privacy Protection Act of 1980

  9. REPORTER’S PRIVILEGE • Privileged vs. Non-privileged relationships • Traditionally, Journalist-Source NOTprivileged • Plunkett v. Hamilton (1911): duty to testify in order to obtain truth • **Branzburgv. Hayes (1972): cannot use 1st Amendment to protect sources • Vaughn v. Georgia (1988): sources in criminal cases • Howard v. Savannah College of Art & Design (1989): sources in civil cases

  10. Georgia’s Shield Law (1990)O.C.G.A. 24-9-30 • “Any person, company or other entity engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought: 1) is material and relevant; 2) cannot be reasonably obtained by alternatives means, AND 3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document or item.”

  11. REPORTER’S PRIVILEGE • Atlanta Journal-Constitution v. Jewell (2001): balancing test

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