Pretrial Publicity

Questions regarding pretrial publicity center on the tension between two guaranteed rights in the United States. The First Amendment to the Constitution allows freedom of the press, and the Sixth Amendment provides each defendant the right to a speedy trial before an impartial jury. When the press publicizes details of an ongoing investigation (e.g., prior convictions of the defendant, particular pieces of evidence, or a confession), the media expose potential jurors to these details. Later, when jurors decide the case, they can be affected by media information even if these materials are not admissible in the actual trial. Psychologists have long been aware of the biasing effects of pretrial publicity.

Psychologists have conducted pretrial publicity research in controlled experiments and in observational field studies involving actual cases. Both lines of research suggest that pretrial publicity poses serious threats to the fairness of the legal system. An extensive meta-analysis of experimental studies of pretrial publicity (Steblay, Besirevic, Fulero, & Jiminez-Lorente, 1999) revealed that pretrial publicity can affect jurors’ views of the defendant, their initial views of his or her guilt, and their final verdicts. Experimental work has demonstrated the effects of pretrial publicity on civil cases as well (Bornstein, Whisenhunt, Nemeth, & Dunaway, 2002).

Field studies also justify concerns about the impacts of pretrial publicity on legal outcomes. Surveys investigating participants’ knowledge and views about well-known crimes or about local criminal cases suggest that people who recall more pretrial publicity know more about the case and are more likely to have reached conclusions regarding the case (Studebaker et al., 2002).

Researchers distinguish between two types of pretrial publicity, specific and general (Greene & Wade, 1988). Most research addresses specific pretrial publicity or publicity about the case in question. Some research has been directed toward general pretrial publicity or publicity not about the case in question but about potentially relevant issues. For example, reading a newspaper article portraying a mistaken conviction can predispose jurors to be less likely to convict a defendant than are jurors who have read newspaper articles that are not trial related (Greene & Wade, 1988).

Researchers have thoroughly documented the effects of pretrial publicity, but reducing the effects of pretrial publicity continues to present difficult problems. Many remedies have been suggested, but few are effective. Some early suggestions included extensive jury deliberation, judicial admonition (instructions from the judge to the jury to disregard all pretrial publicity), careful jury selection, and thorough voir dire, or questioning of the jury pool. A comprehensive study by Kramer, Kerr, and Carroll (1990) demonstrated that these remedies do not substantially reduce the effects of pretrial publicity. However, two other methods have shown promise. A change of venue to a location away from the crime, as in the Timothy McVeigh trial discussed previously, can result in a pool of potential jurors who have experienced less publicity about the case (Studebaker & Penrod, 1997). Additionally, continuance— a delay of the trial—can reduce the impact of some aspects of pretrial publicity. Over time, potential jurors may forget factual information related to the case, but emotional pretrial publicity persists over time (Kramer et al., 1990). For example, when McVeigh’s case went to trial long after the bombing, potential jurors going through voir dire may not have recalled that exactly 168 people died in the 1996 Oklahoma City bombing, but the memory of the popular and powerful photo of the firefighter carrying the child’s body from the wreckage may have remained vivid. Psychologists have been and remain involved in cases with potential pretrial publicity, both as advocates and as impartial experts.

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