Legal & DebateDUAL-USE

Pretrial Publicity

What it is

Media coverage of a case before trial, and the extrajudicial statements by lawyers, police, and parties that feed it, which shape the pool of prospective jurors before any evidence is admitted and are only partly cured by voir dire, instructions, and change of venue.

How it works

Jurors arrive with what they have read, and what they have read is usually the prosecution's or the plaintiff's account, because arrests, indictments, and lawsuits are newsworthy and defenses are not yet articulated. Steblay and colleagues' 1999 meta-analysis found that exposure to negative pretrial publicity increased guilty verdicts, with larger effects for real rather than fictional coverage and for reports of a confession or prior record. Kramer, Kerr, and Carroll (1990) found that judicial instructions to disregard did not remove the effect and that emotional publicity was more persistent than factual publicity. The lever is source confusion and the continued-influence effect: jurors cannot reliably separate what they learned in the courtroom from what they learned earlier, and an admonition does not erase a memory. The rules respond at the source: ABA Model Rule 3.6 bars lawyers from extrajudicial statements likely to prejudice a proceeding, with a safe harbor for public-record facts and a right of reply. Courts respond with voir dire, continuance, sequestration, and change of venue, remedies that Sheppard v. Maxwell (1966) made mandatory where the risk is severe.

Real-world examples

  • •Sheppard v. Maxwell (1966): the Supreme Court overturned Sam Sheppard's murder conviction because the trial judge failed to control saturating press coverage inside and outside the courtroom, and set out the tools (continuance, venue change, sequestration, limits on statements by lawyers and police) that trial judges must use.
  • •Skilling v. United States (2010): the Court declined to presume prejudice from extensive Houston coverage of Enron's collapse, reasoning that a large, diverse jury pool and careful voir dire could produce an impartial jury; the case marks the modern limit on venue-change claims.
  • •The Duke lacrosse case (2006-2007): District Attorney Mike Nifong's public statements about the accused players, made while the evidence was collapsing, contributed to his disbarment in 2007, which rested in part on North Carolina's rules against prejudicial extrajudicial statements.
  • •Richard Jewell, the security guard who found the bomb at the 1996 Atlanta Olympics, was named as a suspect in leaks and coverage for months before the FBI cleared him; the episode is the standard example of publicity convicting someone who was never charged.

Historical case studies

Sheppard v. Maxwell

1954–1966US Supreme Court

Before and during Dr. Sam Sheppard's 1954 trial for the murder of his wife, Cleveland newspapers ran front-page editorials demanding his arrest, published the names and addresses of the jurors, and reported "evidence" that was never offered in court. Reporters were seated inside the bar of the courtroom, within a few feet of the jury. In 1966 the Supreme Court held eight to one that the "carnival atmosphere" had denied him a fair trial and that the judge had a duty to control it. Sheppard was retried that year and acquitted.

Source →

Skilling v. United States

2010US Supreme Court

Former Enron chief executive Jeffrey Skilling argued that he could not receive a fair trial in Houston, where the company's collapse had cost thousands of jobs and drawn years of hostile coverage. The Supreme Court disagreed. It held that prejudice is presumed only in extreme cases, and pointed to the size and diversity of the Houston jury pool, the four years that had elapsed, the largely factual tone of the reporting, a detailed juror questionnaire, and the jury's acquittal of Skilling on nine counts. The case marks the limit of the Sheppard principle: pervasive publicity is not by itself proof of a biased jury.

Source →

Ethical guidelines

Where the line is

Stating what a public filing says, explaining the general nature of a defense, and replying to correct prejudicial publicity started by others are permitted by Rule 3.6; statements about a party's character, a confession, test results, or guilt, timed to reach the jury pool before the evidence can, use the press to do what the rules of evidence would forbid in court.

  • ●Lawyers may state the claim, offense, or defense involved, information in the public record, the scheduling of the case, and a request for public help, and may respond to protect a client from prejudice created by others' publicity (Model Rule 3.6(b) and (c)).
  • ●Statements about a party's character or credibility, the existence or contents of a confession, the results of tests, or an opinion on guilt are the categories the rule's comment identifies as likely to prejudice a proceeding, and prosecutors are further restricted by Rule 3.8(f).
  • ●Police and prosecutors who leak, or stage arrests for the cameras, shape the jury pool as surely as a press release; the ethical obligation extends to the people the lawyer supervises.
  • ●Educational; rules vary by jurisdiction; not legal advice.

How to defend against it

  • ►Jurors: when you recognize a fact you did not hear in the courtroom, name its source to yourself; the instruction to decide only on the evidence works better when you actively tag what came from outside, which is the counter to source confusion.
  • ►Prospective jurors: disclose what you have read and any opinion it produced during voir dire; the system depends on that candor, and having formed an impression is not a failing.
  • ►Opposing advocates: document the coverage, move for a change of venue or continuance early, request extended and individual voir dire on exposure, and use Rule 3.6(c) to correct the record where the other side has spoken publicly.
  • ►Parties and witnesses: say nothing to the press without counsel; a statement that helps today is a prior statement that can be used at trial, and a party's own publicity weakens a later venue motion.
  • ►Readers: apply lateral reading to crime coverage. Ask whose account the story reports, what the defense has said, and whether "sources say" is a leak from a party with an interest.

From the Defense Playbook

Recognize Improper Argumentminutes

Learn the short list of things a lawyer is not supposed to say to a jury (put yourself in the victim's place, take my word for it, send a message, the other side has to prove its innocence) so that, as a juror or an observer, you can notice them and set them aside. (Educational; the rules vary by jurisdiction.)

Every playbook entry states how strong its evidence is and when not to use it. Browse the full playbook.

References

  1. Steblay, N. M., Besirevic, J., Fulero, S. M., & Jimenez-Lorente, B. (1999). The effects of pretrial publicity on juror verdicts: A meta-analytic review. Law and Human Behavior, 23(2), 219-235
    Negative pretrial publicity increases guilty verdicts across the experimental literature.
  2. Kramer, G. P., Kerr, N. L., & Carroll, J. S. (1990). Pretrial publicity, judicial remedies, and jury bias. Law and Human Behavior, 14(5), 409-438
    Judicial admonitions fail to remove publicity effects; emotional publicity persists longer than factual publicity.
  3. Supreme Court of the United States (1966). Sheppard v. Maxwell, 384 U.S. 333. United States Reports
    The trial court's duty to control prejudicial publicity and the remedies available to it.
  4. American Bar Association (2023). Model Rules of Professional Conduct, Rule 3.6: Trial Publicity. ABA Center for Professional Responsibility · link
    The substantial-likelihood-of-material-prejudice standard, the safe-harbor list, and the right of reply.
  5. Supreme Court of the United States (2010). Skilling v. United States, 561 U.S. 358. United States Reports
    Limits on presuming juror prejudice from pretrial publicity in a large, diverse venue.
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