The Media’s Impact on the Right to a Fair Trial: A Content Analysis of Pretrial Publicity in Capital Cases

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Abstract

This study examines whether and how the right to a fair and impartial jury may be compromised by prejudicial news media coverage of death penalty cases. Using a unique data set of historic newspaper coverage of 20 capital cases in California in which defendants filed change of venue motions, we conducted a detailed content analysis of 1,831 newspaper articles to examine the nature and extent of the pretrial publicity in each case. We used a detailed coding scheme with 27 content categories to describe the types of information conveyed; analyze the relative amounts of negative, positive, and neutral content in the publicity; and determine whether the publicity included the kind of information that has been shown to bias prospective jurors. The publicity was overwhelmingly negative and we identified a number of highly prejudicial aspects, including heavy reliance on law enforcement and prosecution sources, numerous instances of sensationalized descriptions of the crime and criminal defendant, and the inclusion of legally excludable material. Despite the potentially biasing effects of the publicity analyzed, venue was rarely changed. Moreover, the trial courts’ decisions appeared largely unrelated to the substantial amount and prejudicial content of the pretrial publicity. Implications for a capital defendant’s right to an impartial jury, due process protections, and the adequacy and availability of effective legal remedies are discussed.

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