Plopper Assignment: Chapter 7
Optional Middleton Assignment: Chapter 9
"There are, however, people in this world who seldom pick up a newspaper -- people who, when watching television, sneer in displeasure and change channels at the first glimpse of an anchorperson. While such willfully uninformed citizens are rare, emerging from seculsion only to serve on juries in trials of great national significance, they do exist." -- Joe Keenan
Freedom of the press (First Amendment)
Guarantee of a fair trial by an impartial jury (Sixth Amendment)
"If a juror is so affected by prejudicial publicity that they cannot set aside preconceived ideas"
Three ways judge failed to protect defendant:
1. atmosphere of courtroom uncontrolled
2. information released to press uncontrolled
3. failure to protect jury from impact of publicity
1. change of venue
2. change of venire
3. continuance
4. severance
5. voir dire
6. sequestration
7. judicial admonition
8. new trial
Supreme Court permits states to make decision on whether and how to allow cameras in the courtroom.
In Arkansas, Administrative Order No. 6 of the Arkansas Court Rules (1996) governs broadcasting, recording and photography in all Arkansas courts except juvenile court. It states that the judge may authorize such coverage, but that a timely objection by a party or an attorney shall preclude it. Witnesses may refuse to be photographed and there is to be no photos taken of jurors, minors without parental/guardian consent, victims in cases involving sexual offenses, and undercover police agents or informants.
The order also spells out pooling arrangements if required for media and prohibits artificial lighting, film changes and leaving equipment in the room when court is not in session. "Failure to abide ... can result in a citation for contempt against the news representative and his or her agency."
Gag order on trial participants allowed in some instances.
BUT: Press cannot be prevented from covering trial
Cannot be punished for reporting information lawfully obtained at trial.
Butterworth v. Smith: Reporter who had appeared before grand jury wanted to use his own testimony in a book he was writing. Supreme Court held unanimously that he could do so. Otherwise, critics of government could be silenced by calling them before the grand jury.
NOT decided: Whether he could print during the grand jury session, or other information learned as a witness, such as scope and details of investigation.
VIII. RESTRAINTS IMPOSED ON MEDIA
Trial judge can restrict reporter's access to information through use of a gag order on trial participants, but will generally not impose a prior restraint on publication once the information is out.
Nebraska Press Association v. Stuart (1976)
Gag order on media:
Unanimous Supreme Court said a "heavy burden" required judge to show whether other measures would likely mitigate the effects of unrestrained pretrial publicity, (change of venue, etc.) and how effective the gag order might be. Can't stop word of mouth, can't stop publicity outside the jurisdiction of the court.
Likewise, judges can't punish for publication of truthful information about the judicial process.
IX. PUBLICATION OF A JUVENILE'S NAME
Ark. Code Ann. § 9-27-348 (Repl. 1998), which reads: No information whereby the name or identity of a juvenile who is the subject of proceedings under this subchapter may be ascertained shall be published by the news media without written order of the juvenile court.
However, the U.S. Supreme Court seems to have settled the question of whether a state can issue this kind of prior restraint on the press, in Smith v. Daily Mail, 443 U.S. 97 (1979), and Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977).
In the 1980s, Supreme Court ruled that the public and the press have a qualified First Amendment right of access to pretrial hearings, the jury selection process and to trials.
Richmond Newspapers v. Virginia (1980). Right to attend criminal trials belongs to the public as a whole, but the press often acts as a surrogate for the public.
Globe Newspaper Co. v. Superior Court (1982) Supreme Court ruled states could not require that courts be closed routinely during the testimony of minors in sex offense cases, but if the government shows that closing the courtroom is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest, the courtroom could be closed.
NOT the same as juvenile proceedings, where youth is the defendant.
IF JUDGE tries to close the courtroom, reporter should raise a hand, stand and ask for hearing:
"Your honor, I am (your name), a reporter for the (your news organization). I respectfully request the opportunity to register on the record an objection to the motion to close this proceeding to the public, including the press. Our legal counsel has advised us that standards set forth in state and federal court decisions give us the opportunity for a hearing before the courtroom is closed. Accordingly, I respectfully request such a hearing and a brief continuance so our counsel can be present to make the appropriate arguments. Thank you." (First Amendment Foundation, Tallahassee, Fla.)
Supreme Court has not directly ruled on this, but indications from cases about access to the courtroom, plus state and federal appellate court rulings lead to a presumption of openness.
ARKANSAS LAW
A state statute may exist on the books, even though it is unconstitutional, until it is challenged in court. At least one statute listed in the Plopper book would appear to be in conflict with cases already settled by the U.S. Supreme Court.
Arkansas Code Annotated..C.A. 16-85-204 says that the defendant can ask that the public, including the press, be excluded from the courtroom during pretrial proceedings. However, Press-Enterprise Co. v. Riverside County Superior Court II (1986) effectively guaranteed a First Amendment right to attend pretrial hearings to determine whether there is probable cause to suspect one has committed a crime. Media coverage of pretrial hearings is important because they can be the only chance for public to be the watchdog, because trials often end here.
Judge has the power to cite for contempt of court ANY acts of disobedience or disrespect or any acts that interfere with the judicial process.
Even if an appeals court later decides that a contempt order was unconstitutional, it may well uphold the fine/jail term imposed by the trial judge.
Supreme Court said it is permissible to violate a "transparently unconstitutional" court order if quick appeal is not available, or if the order is so "transparently invalid" that the court has "no right to expect compliance."
Arkansas law on contempt (A.C.A. 16-10-108) provides: "When any peson violates the confidentiality of a court proceeding, or more precisely, if there is willful resistance by any person to the lawful order or process of the court, that person may be subject to criminal contempt and a fine of up to $50 or imprisonment for no more than 10 days or both. Contempt may also be committed through disorderly, contemptuous or insolent behavior during the court's sitting or by any breach of the peace, noise or distrubance directly tending to interrupt court proceedings."