How Free Is Free Speech: Media Bias, Pretrial Publicity, and Defendants’ Need for a Universal Appellate Rule to Combat Prejudiced Juries

The media is a prevalent, persuasive force in American society. Americans, on average, spend over twelve hours per day consuming both traditional and digital media. While most Americans recognize that the media they consume is biased, the media maintains its grip on the American psyche. The media’s effects have also seeped into courtrooms. When a trial has received significant pretrial media attention, jurors become biased against criminal defendants. However, the Sixth Amendment guarantees every defendant the right to a trial by an impartial jury. The prevalence of pretrial publicity and its effects threaten jury impartiality, and therefore negates defendants’ Sixth Amendment rights. Yet, the media itself also has a right to the freedom of press, guaranteed by the First Amendment.

The Federal Rules of Criminal Procedure offer defendants seven methods to remedy pretrial publicity’s effects on their jury: change of venue, continuance, severance, waiver of jury trial, specific voir dire questions, sequestration, and judicial instructions. Unfortunately, none of these methods successfully insulate defendants’ jury boxes from jurors who have been exposed to pretrial publicity. Since the 1870s, the United States Supreme Court has handed down inconsistent, vague opinions without giving clear guidance for lower courts to use when defendants appeal their convictions because pretrial publicity affected juror impartiality.

This Comment addresses biased media coverage affecting jurors and examines the intersection between the First and Sixth Amendments. Next, this Comment discusses Supreme Court precedent and the Court’s current guidance for defendants’ pretrial publicity-based appeals. Then, this Comment argues that a need exists for a universal rule that lower courts can apply fairly and equally to all defendants. Finally, this Comment uses current Supreme Court jurisprudence and the principles found in the First and Sixth Amendments to craft a universally applicable rule for all defendants.