Except in the rarest of cases, media attention to a criminal prosecution negatively impacts criminal defendants. In California, the judicial officer presiding over a proceeding may permit recording only when conducted, "in a manner that ensures that the fairness and dignity of the proceedings are not adversely affected." (California Rules of Court Rule 1.150.) Typically, cases draw media attention from the very beginning. Consequently, in order to protect client interests in cases that draw media attention, defense attorneys must quickly act to convince the court that media recording would adversely affect the proceedings.
What follows in this brief Legal Guide are segments of a few of my arguments against media recording in courtrooms that practitioners can adapt as a portion of their opposing media recording .
1. Negative effect on potential jurors: Negative Pretrial Publicity Causes Juror Bias against Defendants Negative pretrial publicity biases prospective jurors against the publicized defendants, and for the prosecution; the greater the prospective juror's exposure to negative pretrial publicity, the more anti-defendant/pro-prosecution the bias. "[N]egative pretrial publicity significantly affects jurors' decisions about the culpability of the defendant. Jurors exposed to publicity which presents negative information about the defendant and crime are more likely to judge the defendant as guilty than are jurors exposed to limited [pretrial publicity]." (Steblay, N., Besirevic, J., S. Fulero, and Lorente, B., The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review, Law and Human Behavior, Law and Human Behavior, Vol. 23, No. 2, 1999; see also, Wilson, J., and Bornstein, B., Methodological Considerations in Pretrial Publicity Research: Is the Medium the Message?, Law and Human Behavior, 1998, "[pretrial publicity has] prejudicial impact toward proprosecution (sic) verdicts by potential or mock jurors.") Moreover, when reporting on crime, the media selects to report only the most violent crime events, usually with suspects from racial minority groups. (See, for example, Greer, C., News Media, Victims and Crime, Victims, Crime and Society, Sage Publications, Ltd., 2007, p. 21.)
2. Effect on witnesses: the Misinformation Effect Exposure to photographic and/or narrative information can create false memories - even false autobiographical information - in the unsuspecting minds of its viewers. See also, Zaragoza, M. S., et al., False memories for suggestions: The impact of conceptual elaboration. Journal of Memory and Language (2010), doi:10.1016/j.jml.2010.09.004) Iinformation contained in media coverage can affect how witnesses recall an event they experienced; such a phenomenon is termed "the misinformation effect." (Loftus, E., Make-Believe Memories, American Psychologist, November 2003, p. 868.) This effect is even more potent when images are combined with narrative. Consequently, if a trial witness is exposed to information about a case, his memory of the media exposure can influence his memory of the event to which he will testify at trial. For example, in cases where the defendant will argue he was wrongfully identified as the perpetrator, there is a substantial likelihood that media exposure of his recorded image associated with the criminal accusations can undermine his defense by imprinting in the unwitting viewing eyewitness's mind the defendant's guilt . (See also, Sheppard v. Maxwell, (1966) 384 U.S. 333.)
3. Effect on witness testimony: Television Limelight Affects Witness Behavior and Testimony, and the Jury's Ability to Adjudge Credibility On the other hand, behavior of testifying witnesses, otherwise unaccustomed to being filmed, is likely affected by the limelight of the nightly news. Jurors observing such testimony not only will need to evaluate credibility of witnesses, a difficult job in any case, but will also need to measure the effect of the recording on the witness. In his concurrence in Estes v. Texas, (1965) 381 U.S. 532, 583, Mr. Justice Harlan succinctly wrote: "I do not deem the constitutional inquiry in this case ended by the finding, in effect conceded by petitioner's counsel, that no isolatable prejudice was occasioned by the manner in which television was employed in this case. Courtroom television introduces into the conduct of a criminal trial the element of professional 'showmanship,' an extraneous influence whose subtle capacities for serious mischief in a case of this sort will not be underestimated by any lawyer experienced in the elusive imponderables of the trial arena. In the context of a trial of intense public interest, there is certainly a strong possibility that the timid or reluctant witness, for whom a court appearance even at its traditional best is a harrowing affair, will become more timid or reluctant when he finds that he will also be appearing before a 'hidden audience' of unknown but large dimensions. There is certainly a strong possibility that the 'cocky' witness having a thirst for the limelight will become more 'cocky' under the influence of television. And who can say that the juror who is gratified by having been chosen for a front-line case, an ambitious prosecutor, a publicity-minded defense counsel, and even a conscientious judge will not stray, albeit unconsciously, from doing what 'comes naturally' into pluming themselves for a satisfactory television 'performance'?"
4. Effect on witness safety: Safety Concerns Will Influence Witness Testimony Witness safety, and a witness's perception of his own safety, is also of significant concern. For instance, even without the possibility of television cameras recording their testimony, witnesses in cases involving criminal street gangs are notoriously reluctant to speak with police during investigations and to testify in court, due to safety concerns. The potential that their testimony will be broadcast will heighten this fear and negatively impact the entire justice process. Indeed, where a witness's testimony against a particular gang is publicized, the likelihood of legitimate safety issues arising will be enhanced .
5. Effect on jurors and witnesses: Displaying a Defendant in Jail Clothes Undermines Presumption of Innocence In the pretrial phases of criminal cases, in-custody defendants are typically dressed in easily identifiable jail clothing and are frequently arranged in groups together in the courtroom, sometimes behind bars, many times shackled together. Such display could not be more suggestive, and could constitute an unduly misleading out of court identification process if viewed by a trial witness. (See, e.g., United States v. Wade, (1967) 388 US 218.) The "foundation of the administration of our criminal law" is the court's enforcement of the principle that the accused is presumed innocent. (Estelle v. Williams, (1976) 425 U.S. 501, 503, quoting, Coffin v. United States, (1895) 156 U.S. 432, 453.) To that end, "courts must be alert to factors that may undermine the fairness of the fact-finding process [and] must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." (Estelle v. Williams, supra., citing, In re Winship, (1970) 397 U.S. 358, 364.)
Displaying the defendant in jail clothing "at trial" would be constitutionally impermissible over a defendant's objection because, "an unacceptable risk is presented of impermissible factors coming into play." (Estelle v. Williams, supra., at 504.) However a criminal defendant's right to a fair trial can be violated by occurrences at pretrial hearings. (See, e.g., Estes v. Texas, (1965) 381 U.S. 532.) While Estelle's holding is articulated in the context of trial, the key factor in the court's decision was the fact that the, "constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment." (Id., 504-505.) Thus, the constitutional infirmity relates to the repetitive influence on jurors rather than the stage of the process. Since about 13% of average nightly news programming is devoted to "teasers," or repetitive notification of upcoming stories (the most popular of which involve crime), the likelihood is that recorded criminal defendants' images will be repeated with enough frequency to amount to a constant reminder of the defendant's custody status. (Kaplan and Hale, Local TV News in the Los Angeles Media Market: Are Stations Serving the Public Interest?, USC Annenberg School for Communication & Journalism, March 11, 2010, pp. 4, 6.) These recordings can also be broadcast without limit over the Internet, and even on giant billboards jurors may pass on the way to courthouses. Because compelling the accused to be filmed and broadcast in jail clothing, "operates usually against only those who cannot post bail prior to trial," this presumption may also violate the Fourteenth Amendment concept of equal justice. (Id.)