By: Michelle-Ramos Burkhart
A recent study conducted by the Pew Research Center in 2013 found the following increases in media use over the past decade (from 2000 to 2010):
- The average internet use by adults rose from 46% to 79%
- The use of home broadband rose from 5% to 64%
- The ownership of cell phone use rose from 50% to 82%
- Social network users rose from 0% to 48%
There is no question that the media now permeates every aspect of daily life. On average, individuals spend 30% of their waking hours using some form of media (Lamb, 2005). It is reasonable to assume from these figures that media has also significantly affected the justice system and our legal process.
Although across the U.S. crime rates have continuously declined, researchers are now examining the effects of media sensationalism and the everyday visual access to crime scenes via television and internet on jurors’ perceptions and opinions. Many jury consultants would agree that there is a relationship between legal media reporting and viewing and a juror’s opinions on everything from an attorney’s demeanor to their position on the death penalty.
Not only does television and internet have the ability to alter jurors’ perceptions, so does radio, music, video games, social media, and newspapers. The media can also impact selected jurors despite jury instructions given in the courtroom. Take the Jodi Arias trial for instance, where post-conviction and pre-sentencing communications were discovered on a juror’s Facebook page where she wrote: “If she [Arias] does have Latina blood, it may explain a temper lol,” Juror No. 17, wrote in the comment field (Winch, 2013).
The media is a market driven institution that produces or pitches stories 24/7 for public enjoyment, entertainment, and ratings. High profile court cases have seemingly generated some of the top ratings and it is clear the public simply can’t get enough. The manipulation is of great concern for many; take for example the Trayvon Martin case. While pundits were focused on the defense and prosecution strategy, there were several days when the media’s sole focus was on the “celebrity” of the prosecutor who was holding regular press conferences and receiving legal “rock star” treatment. Furthermore, media publicity often creates biases, prejudices, and stereotypes to be developed within one’s potential juror pool. According to a study by Dexter, Penrod, and Otto (1994), trial evidence can lessen the prejudice that is developed by pre-trial media but it cannot eliminate it completely. Overall, the literature supports the argument that pretrial publicity shapes verdicts (Studebaker, 2002).
The influence of pre-trial media can easily be seen in numerous recent cases; headline news outlets often present the coverage with interesting and often inflammatory bylines that captivate public interest. The media can significantly influence opinions about the legal issues presented and often provides misinformation about the law, evidence, or facts altogether. Viewing a court case exclusively through the media creates potentially erroneous perceptions, judgments, and ideas about our judicial system and legal process. Those viewing today will be called tomorrow to serve with those misperceptions and biased opinions.
When is media coverage too much? Is it time to set some guidelines that must be adhered to beyond the sole discretion of the judge in a given case? As a legal psychologist and lawyer, I think we are ineffectively addressing the media issue, but under whose jurisdiction does the rule making lie? It is hard to know and even harder to come to a consensus in the field. When fashioning a remedy to protect a defendant’s right to a fair trial, a trial judge must balance the accused’s Sixth Amendment right to a fair trial with the media’s First Amendment right to freedom of the press and this presents a challenge. Courts have historically applied such remedies as venue changes, jury instructions, and sequestration, many of which have ben found to be fairly ineffective at protecting a defendant’s right to a fair trial (Bunker, 1997). Many believe this is a non-issue, while others feel strongly that it is destroying the fairness and impartiality of our trials in this country. While the opinions and solutions may not be clear, one thing is for certain: the media’s appetite for legal cases is only going to grow with their ratings. The question is how or when do we as advocates for equal and fair justice decide when enough is enough?
Perhaps consultants can add value and educate attorney clients through technology, and offer more pre-trial media meta-analyses. Perhaps researchers can conduct post-trial media assessments that examine jurors’ decision making processes, including how prior media exposure informs and influences those decisions. Perhaps more practical research data can be conducted through post jury interviews, rather than simply relying on higher education research conducted in academic settings — this practical research might add more value to the field and offer a more realistic look at the impact of pre-trial publicity. There are no easy solutions to be sure, but work needs to be done because as technology advances, so will jurors’ exposure in all forms. We need to embrace the new paradigm and lead the legal field on being responsive to this new lens through which jurors view the judicial process.
Bunker, M.D. (1997). Justice and the Media: Reconciling Fair Trials and a Free Press.
Dexter, Penrod, and Otto (1994) The biasing impact of pretrial publicity on juror judgments. Law and Human Behavior, 1 (4) 453-469.
Pew Internet and American Life Project. (2011). http://www.pewinternet.org/ (last visited Dec. 1, 2011)
Studebaker, C.A. (2002) Studying Pretrial Publicity Effects, New methods for improving ecological validity and testing external validity, Law and Human Behavior, 26, 29.
Michelle Ramos-Burkhart, J.D., LL.M is the founder and president of Verdict Works, LLC, a trial consulting firm based in Long Beach, CA. You can learn more about Verdict Works at http://www.verdictworks.com/
# or contact Michelle directly at email@example.com