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120 Cards in this Set

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# The free press—fair trial issue is generally viewed as a conflict between rights guaranteed by what two Amendments to the U.S. Constitution?
1st and 6th
The Supreme Court has adopted what kind of approach to deal with this issue?
a balancing approach, refusing to declare one set of rights more important than the other
In general, the Supreme Court has held that restrictions on the media may be imposed only when?
as the last resort if all else fails to ensure the defendant's right
Generally, the conflict between freedom of the press and the right to a fair trial is manifested in what three ways?
-pretrial publicity may make it difficult to find impartial jurors
-during trial may taint a sitting jury
-presence of journalists and equipment may cause physical/psychological disruption
Jurors are supposed to arrive at a verdict based solely on what?
the evidence presented to them in the courtroom
Do the media follow court rules of evidence in deciding what to publish?
Must jurors be totally ignorant of the facts and issues involved in a case to be considered impartial?
How is an impartial juror defined?
with only slight impressions that maybe supposed to yield to the testimony that may be altered, fair consideration
Reporting which types of information can create a danger of prejudice?
-prior criminal records
-confessions or other admissions
-results of investigative procedures/tests
-opinions regarding the character, personality, or guilt/innocence of defendant
Why would journalists want to publish prior criminal records?
they believe it's important for the public to be informed if, say, a rape suspect has been charged with sexual assault before
Why would prior criminal records not be admitted as evidence in court?
the jury is supposed to base verdict on evidence relating to the current case only
Why would publishing information about confessions be a problem?
potential jurors may have a hard time forgetting that report when deliberating
Why would reporting results of procedures and tests be a problem?
can be the key basis for the trial and is sometimes withheld from a jury
Why would reporting opinions about the accused be a problem?
such publicity not only may cause prejudice within a community but also may result in jurors feeling pressure to bring verdict the public wants
Why would publishing speculations about evidence or witnesses be a problem?
adds an element of guesses to juror's idea of fact
In addition to those five categories of information," why is any sensational or inflammatory coverage of a crime and its aftermath potentially prejudicial?
can stir up emotions in a community that may be inconsistent with the impartiality the 6th amendment demands
What is the significance of Irvin v. Dowd, 1961?
the first time the supreme court overturned a state criminal conviction solely because prejudicial publicity interfered with a defendant's right to a fair trial
Why was Wilbert Rideau's conviction reversed by the Supreme Court?
a not-informed Rideau confessed on film and that video was broadcast and he was denied a change of venue
Why was Sheppard's (Sheppard v. Maxwell) conviction reversed?
the totality of the circumstances which included juror exposure during the trial and disruptions involved, not just the pretrial
Why might the effect of highly prejudicial information be greater when it reaches jurors through the media rather than through testimony in court?
"for it is not tempered by protective procedures"
Why then (three reasons), is during-trial publicity usually not considered as serious a problem as pretrial publicity?
-once a trial begins the media have the trial itself to resort to
-jurors are often sequestered in sensational, widely publicized cases
-judges routinely instruct them not to read, listen to or watch anything about the trial
What is the significance of Marshall v. United States (1959)?
the first case the supreme court reversed a federal criminal conviction solely on the basis of prejudicial publicity
Did during-trial publicity play a role in Sam Sheppard's conviction in 1966?
Yes, a role
In what ways did the judge in Sheppard fail to control prejudicial publicity?
he failed to give adequate instructions regarding juror exposure to the medial
Has research demonstrated that publicity affects jurors' impartiality?
inconclusive, indicates that most people take juror responsibility seriously
When is prejudicial publicity most likely a factor?
the rare, sensational case
How might the media deprive a defendant of judicial serenity and calm in the courtroom itself?
too strong a presence
What are the two broad categories of remedies for prejudicial publicity, and how do they differ from each other? Which has First Amendment implications?
1) designed to compensate for the existence of prejudicial publicity
2)designed to prevent or diminish prejudicial publicity and to control the presence and/or activity of journalists in the courtroom
Who has the responsibility of protecting a defendant's right to a fair trial?
trial judge
What are the traditional tools that judges can use to compensate for the effects of publicity without restricting publication?
change of venue
change of venire
voire dire
admonitions to the jury
What is change of venue?
when a trial is moved to a new venue
What are the reasons that the defense would request a change of venue?
where publicity has not been intense and, therefore, potential jurors are less likely to have been influenced by pretrial coverage
What is change of venire, and why would the defense request it?
import jurors from another community. works only if publicity has been confined to the location in which the crime occurred
What is a continuance?
to delay it
What right does the defendant sacrifice in a continuance?
the right to a speedy trial
Why might a continuance be effective for the defendant?
if publicity surrounding a trial and arrest can reasonably be expected to diminish over time
What is voir dire? What is its purpose?
The process at the beginning of a trial when potential jurors are questioned to determine if they can be impartial
What are "challenges for cause" and "preemptory challenges"?
challenges for cause--have concrete reason to object to juror
peremptory challenges--rights by which an attorney can dismiss potential jurors without providing a reason
Why does the text say jury selection has now become a form of social science?
demographics and socioeconomic factors can be cause for challenge
How many preemptory challenges are available to each side?
depends on the nature of the trial
Do judges believe the voir dire process is effective in weeding out potentially prejudiced jurors?
What are admonitions to the jury?
order not to read, watch, or listen to any media coverage of or commentary on the trial and not discuss trial with anyone
What can happen if jurors fail to follow the judge's orders?
removal, citation, or both
Are admonitions considered to be effective?
open to debate, but believed to be effective in most cases
What is sequestration?
isolating the jury for the duration of the trial
Sequestration is effective in preventing what?
preventing juror exposure to prejudicial media
What are the drawbacks of sequestration?
disruptions to jurors' lives
eliminates from juries people who can't leave their lives
leads to psychological distress
leads to resentment against defendant
Why have judicial efforts to control what information journalists have access to and what the media publish or broadcast been severely limited by the Supreme Court?
infringes on 1st amendment rights
What six categories of remedies aimed at eliminating or reducing prejudicial publicity and media interference with fair trial rights does the text name?
1-gag orders aimed at media
2-restrictions on trial participants
3-post publication sanctions
4-court closures
5-denial of access to court records
6-bans or limits on cameras in courtroom
What were the conditions relating to judge-imposed gag orders that led up to Nebraska Press Association v. Stuart (1976)?
steady increase, absurd nature, excessiveness
What is the significance of Nebraska Press Association v. Stuart (1976)?
put a halt to the indiscriminant use of gag orders on the press
What is the significance of Oklahoma Publishing Co. v. District Court (1977)?
Supreme court said gag orders were rarely necessary
What are the three prongs of the Nebraska Press Test?
1-nature and extent of pretrial news coverage
2-whether other measures would be likely to mitigate the efforts of unrestrained publicity
3-how effectively a restraining order would operate to prevent the threatened danger
True or False? Gag orders on the media are rarely found to be constitutional. (They are presumptively unconstitutional.)
What examples does the text give of cases in which gag orders have been found to be constitutional?
Utah , man said to have crime family connections
CNN, Noriega case
What important point is illustrated by the CNN/Noriega tape case?
Even if a court order is eventually declared unconstitutional, a person who disobeys a court order while it is in effect, can be found guilty of contempt
What is the "collateral bar rule"?
a person who disobeys court order may not collaterally challenge the constitutionality of the order as a defense to the contempt charge
What is the reasoning behind the collateral bar rule?
the effectiveness of the whole judicial system would be hampered if individuals were free to make their own decisions about which court orders they'll obey or not
How does United States v. Dickinson illustrate the rule?
2 reporters violated gag orders, gag orders were reversed, they were still charged with contempt
What is the more flexible approach taken by the First U.S. Circuit Court of Appeals about the rule?
transparently invalid gag order can be violated with impunity if the publisher made a good faith effort to have an appellate court reverse the order
What is the Dickinson Rule and where is it binding?
must obey court order until it's overturned by an appellate court
What is the Providence Journal Rule and where is it binding?
make a good faith effort to seek emergency relief from the appellate court before violating; 1st circuit
What is the best advice for journalists in regard to obeying gag orders?
obey or try very hard to follw them or at least good faith effort at appellate court
Is it harder (or easier) for judges to gag trial participants vs. the press?
Does the Nebraska Press Test apply when then media are themselves parties in the case?
In most states, can an attorney be disciplined for public statements that could prejudice a trial, even if the judge has not issued an order specifically limiting extrajudicial statements?
Does a trial judge have the inherent power to issue gag orders aimed at attorneys?
What was one of the key criticisms of Judge Lance Ito's conduct of the O. J. Simpson trial?
failure to regulate the out-of-court comments of the attorneys
What can result if an attorney violates a gag order?
contempt of court conviction
When are gag orders on witnesses acceptable?
if they are necessary to protect the defendant's right to a fair trial and alternate measures are not available
What is a grand jury?
investigative body that determines if there's enough evidence to indict someone with a crime
Can jurors be gagged during a trial? After a trial?
yes, usually
What are the reasons for post-verdict restrictions on jurors?
protect juror's privacy and ensure the secrecy of jury deliberations
Has the U.S. Supreme Court ever ruled on the constitutionality of restrictions on post-verdict juror interviews? How have states dealt with this issue?
What two categories can these sanctions be divided into?
contempt of court citations
When do judges have the power to find people in contempt?
-disobey court orders
-engage in conduct that interferes with the administration of justice
Contempt of court citations can result in what?
fine, imprisonment, or both
What are the differences between civil and criminal contempt citations?
civil: coercive, to force an individual to obey a court order
criminal: punish disobedience of a court order or disrespect for or disruption of the judicial process
In general, can judges cite journalists for contempt for their commentary or criticism of the court? When would a contempt citation be appropriate?
not unless it presents a clear and present danger of interfering with the fair administration of justice
Why did some judges after Sheppard begin to close the courts?
judges seeking to avoid the problems the believed were caused by the media coverage of trials
What did the Supreme Court rule in Richmond Newspapers v. Virginia? (p. 367) In Globe Newspaper Co. v. Superior Court?
closure of voir dire violates the 1st amendment
Is jury selection presumed to be open? Why?
yes, it enhances both the fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system
Is the voir dire process presumed to be open?
What is the significance of Press Enterprise II?
trial judges must provide specific, on the record findings
Are criminal pretrial proceedings (preliminary hearings) presumed to be open?
Is this right of access qualified? Can it be overcome by an overriding or compelling interest?
No; Yes.
What are the factors to be considered in a closure test (Press Enterprise II)?
if overriding interest to be served by closure was the defendant's rights to a fair trial, a judge had to find there was a substantial probability of prejudice resulting from open proceedings, with specific, on-th-record findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest
When may a judicial proceeding be closed?
1-experience test, logic test
2-essential to perseve higher values, narrowly tailored
3-substantial probability of interferance with rights, clsure protects, no reasonable alternatives
What should journalists do when faced with a motion to close a judicial proceeding?
-raise hand
-sand and ID as reporter
-formally object
-request hearing for organization's attorney
-remain respectful
Have juvenile proceedings historically been open or closed?
Has the Supreme Court ruled on whether the First Amendment right of access applies to juvenile proceedings?
Has the Supreme Court ruled that civil trials are presumptively open?
What have state and federal courts ruled on this issue?
press and public enjoy a right of access to civil judicial proceedings
In general, have courts recognized a right of access to both criminal and civil court records?
What types of court records generally are not available to the press and public?
grand jury proceedings; indictments until arrest has been made
What has been the impact and response of judicial records becoming available electronically?
growing concerns about privacy and potential misuse of court records = efforts to restrict electronic access
Do states allow at least some camera coverage of state court trial proceedings?
What has changed over time for courts to begin allowing cameras in the courtroom?
technological advances = cameras less obtrusive, changing public and judicial attitudes
What is the significance of Chandler v. Florida?
supreme court held that no one has been able to present empirical data sufficient to establish that the mere presence of broadcast media inherently has an adverse effect on that process
As of 2003, were cameras allowed in most federal courtrooms?
Do the U. S. Courts of Appeals have the right to decide for themselves whether to permit photo, radio, and television coverage?
From the readings in the section, do you think cameras are allowed in the U. S. Supreme Court?
What can happen to journalists who violate the rules governing electronic coverage of courtrooms?
can be found in contempt of court
What are bench-bar-press guidelines?
free press/fair trial guidelines
What tension is discussed in this introduction?
between government secrecy and public access to government information
Does the FOIA ever require secrecy?
what are the nine FOIA exemptions?
1-Nat security
2-administrative documents
3-other laws
4-trade secrets
5-inter- and intra-agency memorandum
6-personal privacy
7-records of financial institution
8-law enforcement records
9-geological and geophysical info and data
When was the EFOIA passed?
What does the EFOIA guarantee?
records maintained
Does the government have a sterling record of fulfilling FOIA and EFOIA requests?
Have these acts been useful to journalists in producing important stories?
What is the Sunshine Act of 1976?
requires the meetings of high-level decision makers in about 50 executive branch agencies to be open
What does this act let the public observe?
how/why an agency makes the decisions it does
What agencies are affected by the act?
only agencies subject to FOIA
Do agencies regularly evade the law?
When can portions of meetings be closed?
when subject matter falls under one or more of 10 exemptions
How do the meetings exemptions compare to the FOIA?
7 parallel FOIA exemptions
What impact did the attacks of September 11, 2001 and the Homeland Security Act of 2002 have on access to information on the Federal level? (pp. 396–397) On the state level?
slower, struggling to balance law enforcing needs pretcting, collecting sensitive data without infringing on individual liberties and exempting important info from state's public record law
Why is it important for reporters to have some knowledge of both general and specific access, open meetings, or right-to-know laws where one works and lives?
there are more state and local records and ther are more state and local issues
Does the First Amendment protect the right to disseminate information, news, and opinions?