Ian Cram, School of Law Leeds University

I.G.Cram@leeds.ac.uk

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

[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)

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

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

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)

State of California v Simpson (1995)

AGv MGN [2011] EWHC 2074

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)

Flowing out of the jury room

Tweet updates on jury room experiences – including deliberations

Facebook – see Fraill case

Blogging

Flowing into jury room

Eg private juror internet research done away from courtroom later disclosed to fellow jurors (eg Juror No 8’s knife)

Facebook, Twitter

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

Undermines finality of jury verdicts

Inhibits juror to juror exchanges (and therefore quality of jury deliberations)

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

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

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

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

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?!?!’

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?

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

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).