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The Media and the Criminal Justice System. JOUR3060 Communication Law & Regulation. CONFLICTING CONSTITUTIONAL GUARANTEES. 1 st Amendment: Congress shall make no law ... abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble… 6 th Amendment:

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The media and the criminal justice system

The Media and the Criminal Justice System

JOUR3060 Communication Law & Regulation

Conflicting constitutional guarantees

  • 1st Amendment:

    • Congress shall make no law ...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…

  • 6th Amendment:

    • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense

  • 9th Amendment:

    • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

Pre trial proceedings

  • Arrest / Charge

  • Discovery

  • Plea Bargaining

  • Motions

  • Voir Dire

  • Trial:

    • opening arguments

    • evidence presented

    • testimony given

    • closing arguments

    • judgment rendered

    • Sentencing

  • Post-Trial

    • appeal?

    • serve sentence

Freedom of the press issues of pretrial publicity
FREEDOM OF THE PRESS(Issues of Pretrial Publicity)

  • Sheppard v. Maxwell (1966)


    • 1:15 – 6:00

Freedom of the press

  • Estes vs. Texas (1965): broadcast media NOT allowed in court

  • Chandler vs. Florida (1981): courts MAY allow cameras to cover criminal trials

  • Gannett Co. v. DePasquale (1979): access to public trials

  • Richmond Newspapers v. Virginia (1980): access to criminal trials

Freedom of the press1

  • Pre-Enterprise v. Superior Court I (1984): establish public’s right to witness jury selection in criminal trials

  • Waller v. Georgia (1984)

    • Press-Enterprise / Waller Test: Pre-trial proceedings presumed to be open, unless:

    • 1) overriding interest likely to be prejudiced

    • 2) closure is broader than necessary to protect interest

    • 3) alternatives to closure not considered

    • 4) trial court makes findings of fact to support closure

  • Press-Enterprise v. Superior Court II (1986): establish public’s right to witness pretrial hearings in criminal cases

    • Press-Enterprise II Test: Pre-trial proceedings cannot be closed, unless:

    • 1) specific, on-the-record findings justifying closure,

    • 2) closure necessary to preserve higher values,

    • 3) closure is narrowly tailored to serve that interest

Freedom of the press2

  • Cincinnati Gas & Electric Co. v. General Electric Co. (1988): example of legitimate interest justifying closure

  • Craig v. Harney (1947): news articles not “clear and present danger”

  • Nebraska Press Association v. Stuart (1976): prior restraint of news coverage is unconstitutional

  • Zurcher v. Stanford Daily (1978): search of student paper office led to Privacy Protection Act of 1980