The first amendment in the constitution provides for the right to a free press. However, as noted by Carroll et al., too much coverage of a trial can jeopardize fairness in a criminal trial. When judges presiding over a case suspect press coverage may affect the chances of conducting a fair trial, they are free to use any of the judicial remedies and restraints available to them. Such include “voir dire, change of venue, and gag orders.”
The American Bar Association established that where there is a reasonable likelihood that the right to a free press could threaten the likelihood of attaining a free trial, judges should issue an order specifying information that should not be made available to the public. Judges can also issue restraints on attorneys, police, and judicial employees not to comment or disclose information that could be prejudicial to the trial if exposed to the press. Sequestrating the jury is also an action that the court can take to shield the jury from prejudicial press coverage.
Notably, there is no accurate answer on whether a fair trial can be achieved in a highly publicized case. Although Carroll et al. argue that most judges believe that jurors can remain impartial despite being exposed to opinions that may be voiced in the media regarding the case, it’s largely agreeable that jurors, just like other human beings are inclined to form biases based on the published opinions. The jurors’ abilities to set aside such biases and hence remain impartial determine if indeed a fair trial can be attained.
According to Kramer, Kerr, and Carroll, the “more people who know the media’s version of the facts, the longer it takes to find an impartial jury.” Since jurors are human, some may not have the cognitive control needed to prevent prejudicial information attained by the media from influencing their decisions. Even after voir dire Kramer, Kerr and Carroll note that the jurors selected are not necessarily free of biases; rather, voir dire combines different and sometimes opposing biases, thus meaning that the jury is likely to give a fair and impartial verdict. A recent example of concerns regarding free press and fair trial is the ban by a Los Angeles judge, barring a newspaper photographer from publishing pictures of the defendant. According to Brown, the defendant was scheduled to be summoned in court on multiple murder charges. It was argued that publishing the photos of the accused would affect testimonies from eyewitnesses.