2. US First Amendment – Congress shall make
no law ... abridging ... freedom of speech or
of the press...
What does this mean in the context of
reporting court proceedings?
Ideal of republican self-government
Distrust of government regulation of speech
on contents grounds
3. [T]he First Amendment ...has a structural
role to play in securing and fostering our
republican system of self-government.
Implicit in this structural role is ... (the)
assumption that valuable public debate - as
well as other civic behavior - must be
informed.
Brennan J in Richmond Newspapers v Virginia
448 US 555, 587 (1980)
4. Restrictions on speech about court
proceedings is constitutional only if
(i) ‘clear and present’ danger test is satisfied;
AND
(ii) the restriction advances the governmental
interest (eg administration of justice) by
minimally impairing the exercise of First
Amendment freedoms
Effectively rules out sub judice contempt &
makes prior restraints (gag orders) hard to
obtain
5. ABA Standard 8-3.1
Absent a clear and present danger to the
fairness of a trial or other compelling
interest, no rule of court or judicial order
should be promulgated that prohibits
representatives of the news media from
broadcasting or publishing any information in
their possession relating to a criminal case
6. Question: Do reporters get in trouble if news
stories cause the court to change the place of
the trial or delay the trial because of adverse
pretrial publicity?
Answer: No legal penalty or obligation may be
imposed on reporters to avoid publicity about
a case. No legal penalty may be imposed for
even the most intense, exaggerated, biased
or “hyped” coverage of any criminal case
(except the remedies provided by successful
libel suits)
8. Emphasis on curative measures to safeguard
Sixth Amendment fair trial rights (rather than
preventative sanctions imposed on media for
threatening trial fairness) including:
1) Voir dire
2) Venue change/ delay in start of trial
3) Jury sequestering –extreme cases (OJ
Simpson)
9.
10. Flowing into jury room Flowing out of the jury
Eg private juror internet room
research done away from Tweet updates on jury
courtroom later disclosed room experiences –
to fellow jurors (eg Juror including deliberations
No 8’s knife) Facebook – see Fraill
Facebook, Twitter case
Blogging
11. Why is juror’s private research troublesome?
Introduces untested and possibly prejudicial
material into deliberations
Thus undermining rules of evidence & system
of adversarial justice – no opportunity for
prosecution/defence to challenge the
products of private research
Costly where retrial is ordered & additional
trauma for victims & witnesses
12. Undermines finality of jury verdicts
Inhibits juror to juror exchanges (and
therefore quality of jury deliberations)
13. University lecturer & juror
Theadora Dallas
Jailed January 2012
Breached trial judge’s
direction not to search
internet for trial related
materials
Told fellow jurors what
she had found about
defendant (including
previous rape allegation)–
causing trail to be halted
14. Joanna Fraill –June 2011
Discussed case on
Facebook with a
defendant previously
acquitted whilst jury
deliberating remaining
charges against co-
defendant
Revealed details of jury
deliberations
Also admitted Google
search on co-defendant
Jailed 8 months
15. March 2009 – collapse of a federal drugs trial in
Florida after 9 out of 12 jurors admitted private
online research
US v Fumo July 2009 political corruption trial against
a former state senator – juror tweeted during trial
and made posts to his Facebook page – defence
motion for a mistrial rejected
Juror had not read any replies to his tweets – no flow
of information into deliberative process therefore no
prejudice caused to defence
‘As Jurors turn to Web, Mistrials are Popping Up’
J. Schwarz New York Times (2009) March 18
16. Ban Iphones, Blackberries etc. from courtroom –
doesn’t stop out of court
communications/information flow
Make explicit reasons for limits on jurors’ use of
above – and exactly what technology is covered by
ban
Eg “Google Earth may not be used to check location
details in the present case” “Twitter updates on
progress of trial to followers are strictly prohibited”
See Michigan rules (in force Sept 1 2009)
Possible problem – a technology-specific rule is likely
to be under-inclusive as technology progresses – so
any rules will need regular updating
17. Egs. ‘do not use the internet to research the case’ ‘do
not talk about the trial to others’
Lack of specific prohibition may cause
(i)confusion about what precisely is covered;
OR
(ii) encourage ‘lawyer-like’ loophole finding
One US juror blogged thus:
‘Hey guys! I know that jurors aren’t supposed to talk
about their trial, but nobody said that they couldn’t live
blog it, right? Am I right or am I right?!?!’
18. Curious to gain background information on key
participants in trials
Belief that justice will be better served if more
not less ‘information’ is before the jury
Cultural reasons- young (and not so young!)
jurors are accustomed to finding information
online and have the technological means
(Iphones, Blackberry etc.) and expertise to reach
online material
More generally perhaps a dependence on instant
communication to friends/access to information
Twitter is akin to gossiping in your friend’s ear –
how could that pose a threat to trial process?
19. EDUCATING JURORS about
why the use of electronic devices is prohibited
which electronic devices are prohibited
when does the prohibition cease
Consequences of breaching prohibition – remind
jurors of Fraill and Dallas cases and resulting
custodial sentences
Encourage (reward?) fellow jurors to inform on
jurors who breach prohibition upon learning of
the breach
Require jurors to make a declaration of non-use
at the start & conclusion of trial
20. Moving away from wholly adversarial trials to
allow jurors a more active role within
proceedings than they currently enjoy.
This would perhaps offer a means of satisfying
the curious (and conscientious) juror who has
his/her own questions about the events at issue
in the trial and remove a principal reason for
online activity
Some US states (eg. New York and Pennslyvania)
have experimented allowing jurors to submit
written questions – positive feedback from trial
judges (Kaye 2006, Turgeon & Francis 2009).
