When a trial is deemed newsworthy by the press, it is likely that information about the nature of the allegations, the character of the defendant, or other case-relevant information is reported in the media. Although the First Amendment to the Constitution guarantees the right to free speech and a free press, there is concern among the courts and scholars that providing information about a case to potential jury members before a trial may bias the jury pool by creating negative perceptions of the defendant and entrenching jurors’ opinions about the defendant’s guilt before they hear the evidence that is introduced at trial. Empirical research suggests that exposure to pretrial publicity causes jurors to be more conviction prone, especially when the publicity is designed to elicit an emotional response rather than present facts. Results from trial simulation studies suggest that traditional remedies for the negative influence of pretrial publicity on juror decisions, including voir dire, judicial instruction, and continuances, may not be effective in eliminating bias.
Effects of Pretrial Publicity on Juror Decisions
Some of the information provided to the general public, such as comments on the defendant’s character, discussion of a defendant’s prior criminal record, or presentation of evidence against the defendant (e.g., a confession made by the defendant), may create bias in a potential jury member and prevent him or her from hearing the case fairly. In fact, some of the evidence that the media report pretrial may be ruled inadmissible at trial. A community member exposed to inadmissible evidence via pretrial publicity (PTP) may be unable to put aside or ignore the prohibited information if he or she is chosen to serve as a juror for the case. These kinds of biases violate the defendant’s Sixth Amendment right to a fair and impartial jury.
Researchers have typically examined the effects of PTP through field studies and experimental studies. In field studies, PTP is assessed by surveying community members from the venue in which a case will be tried regarding the extent of their exposure to media regarding the case, the information they know or remember about the case, and their perceptions of the defendant’s guilt. Similar information is obtained from community members in other venues to which the case may be moved, generally locations in which the media coverage of the case was less or nonexistent. Knowing this information, researchers can compare both the amount of PTP and the perceived guilt of the defendant between the different venues. The relationship between PTP exposure (as reported by the community members) and pretrial judgments of the defendant’s guilt can also be examined. In general, field studies have shown that community members who reside in the venue in which the trial is to be held and therefore have received the most PTP exposure possess significantly more biased attitudes against the defendant than community members in remote venues. Field studies have the benefit of studying PTP in naturally occurring environments; however, this method also has its shortcomings. Field studies cannot estimate the effects of PTP after the presentation of evidence, its processing, and deliberation with other jurors. Experimental methods are needed to make such assessments.
As opposed to field studies, experimental studies are typically conducted in a laboratory in which the nature and extent of PTP are manipulated while holding other variables constant. Typically, after exposure to PTP, participants watch a trial stimulus and are asked to judge the guilt of the defendant, either on their own or after deliberation with other mock jurors. The effects of varying levels of PTP on verdict choices are examined. The primary advantage of experimental methods is the ability to make causal conclusions about the effects observed. However, experimental studies have often used relatively artificial PTP exposure, as well as undergraduate college students as participants, and therefore have been criticized for their low ecological validity.
In general, experimental research indicates that PTP negatively influences perceptions of the defendant; as more pieces of prejudicial information are presented pretrial, jurors’ pretrial perceptions of the defendant become more negative. The prejudicial impact of the PTP persists even after jurors hear trial evidence. Mock jurors who are presented with negative PTP are more likely to find the defendant guilty than jurors who are not presented information pretrial. The prejudicial effect of PTP has been found in both criminal and civil cases and is greater when the PTP is emotionally based (e.g., graphic details of a brutal rape) rather than factual (e.g., details of the defendant’s past criminal history). Furthermore, research indicates that even publicity that is topically, but not directly, related to a case (known as general PTP) can influence jurors’ evaluations of trial evidence as well as their verdict choices.
Potential Remedies for Prejudicial Effects of PTP
The American Bar Association recognized the harm that prejudicial PTP can cause and has suggested a number of methods to counteract its effects, including voir dire, judicial instruction, continuance, and change of venue. Unfortunately, research has failed to show that most of these methods successfully decrease the effects of PTP on juror judgments.
One of the most common methods used to combat PTP effects is voir dire. During voir dire, attorneys and/or judges question potential jurors about biases they may hold that would prevent them from hearing the case fairly. When PTP is a concern, the judge has the option to extend voir dire questioning to uncover any juror bias that may be the result of exposure to PTP. Empirical research, however, has identified several issues concerning voir dire that prevent its effectiveness. Research has shown that attorneys’ ability to uncover general juror bias is limited. It may be difficult to identify biased jurors in part because attorneys must rely on jurors to self-report their bias, and jurors may lack the ability to recognize the factors that influence their decision making, including exposure to PTP. Exacerbating the problem of self-report is jurors’ motivation to answer voir dire questions in socially desirable ways, feeling a responsibility to the court to remain unbiased. Although it is possible that voir dire may be a vehicle for encouraging jurors to set aside their biases, research thus far has failed to show its effectiveness in reducing the bias produced by PTP exposure.
Another potential remedy for PTP effects is judicial instruction to jurors about their duty to avoid being influenced by PTP. The instructions emphasize the importance of disregarding previously heard information about the case and relying solely on the information presented during the trial. Although research has shown that jurors generally do not follow judicial instructions to disregard information, these instructions have been found to be more effective when paired with a rationale for why the information should be disregarded. Early research found support for judicial instructions as a remedy for PTP; however, the methodologies of these early studies have been criticized. Methodologically sound research is yet to provide support for the usefulness of these instructions.
Continuance—delaying the start of a trial—has been used as a remedy to PTP, with the hope that the effects of PTP will decrease as time passes since the last exposure to the prejudicial media. Research on continuance is limited, but some studies have indicated that the passage of time can decrease the effects of factual PTP but not emotional PTP. A meta-analysis, however, suggests that longer delays between PTP and a trial can actually increase PTP effects. These findings may be due to a sleeper effect—the tendency of unreliable information to become more influential over time because the information becomes detached from the unreliable source in memory. Similarly, information presented in PTP may be difficult to disregard even when jurors are instructed to do so, because the information becomes separated from its source over time, making it impossible for jurors to identify which information in memory came from the trial evidence and which information came from PTP.
Finally, a trial may be moved from one venue to another that is less saturated by PTP in an attempt to minimize the effects of PTP on juror judgments. Empirical research shows that a change of venue is the most effective way to remedy PTP effects, as studies have found that jurors in areas more heavily saturated by PTP are more biased in support of the prosecution and against the defendant than jurors in areas less saturated by PTP. It has been argued that in extremely high-profile cases, finding a venue where potential jurors have not been tainted by PTP is impossible. However, content analyses of actual media coverage have shown that even in highly publicized cases such as the Oklahoma City bombing, alternative venues with little, or at least reduced, PTP can be found. Thus, even if a change of venue cannot eliminate PTP effects, it may be able to reduce them.
Psychological Consultation in PTP Cases
When a defendant believes that community members have been exposed to a significant amount of PTP concerning the case, his or her counsel may file a motion to seek remedies to counteract the bias that may result from the prejudicial information. When such motions are filed, either side may call an expert who may provide testimony to the judge making determinations about whether to implement any remedies, such as expanded voir dire or a change of venue. The expert may testify about experimental psychological research on PTP, including the negative impact it has on jurors’ perceptions of the defendant and on verdict decisions. The expert may make comparisons between the types of PTP used in research and the types of publicity that have been released in the current case. The expert may also testify about experimental research testing the effectiveness of the suggested remedies. Although research indicates that most traditional remedies besides change of venue are ineffective, judges themselves report a strong belief in the effectiveness of remedies such as extended voir dire and judicial instruction.
Additionally, when experts are testifying in a change-of-venue hearing, they may provide the court with data they have collected to assess the level of prejudice in that particular case by comparing the responses from community members in the current venue with community members’ reports of bias in alternative venues. The expert may present differences in the amount of PTP exposure reported by community members, their level of knowledge about case facts, and their perceptions of the defendant’s character and likelihood of guilt as a function of the community in which the respondents live. Additionally, the expert may present results from content analyses of the quantity and quality of PTP in the current venue as well as possible alternative venues. The expert may then testify about differences in media exposure between the communities, including the number of articles reporting on the case, the types of prejudicial information divulged, and the amount of emotional PTP in each of the venues.
PTP continues to be a concern to defendants, the courts, and researchers. Research has consistently demonstrated that exposure to negative information about the defendant pretrial affects jurors’ perceptions of the defendant, that these negative perceptions persist even after trial evidence is presented, and that these perceptions have been shown to influence jurors’ verdict decisions. Additionally, many of the most commonly implemented remedies to counteract PTP have proved to be ineffective when empirically tested. Of the remedies, change of venue seems to be the best method for reducing the negative effects of PTP. Expert testimony addressing these research findings as well as results from surveys assessing the communities’ level of prejudice against the defendant may assist the courts in their quest to provide the defendant with a fair and impartial jury.
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- Studebaker, C. A., Robbennolt, J. L, Penrod, S. D., Pathak-Sharms, M. K., Groscup, J. L., & Davenport, J. L. (2002). Studying pretrial publicity effects: New methods for improving ecological validity and testing external validity. Law and Human Behavior, 26, 19-41.
- Inadmissible Evidence Impact on Juries
- Juries and Judges’ Instructions
- Jury Selection
- Public Opinion about Crime
- Trial Consulting
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