FAIR TRIAL AND FREE PRESS
CONDUCT OF ATTORNEYS IN CRIMINAL CASES
Standard 8- 1.1 Extrajudicial statements by attorneys
Standard 8- 1.2 Rule of court
CONDUCT OF LAW ENFORCEMENT OFFICERS, JUDGES, AND COURT PERSONNEL IN CRIMINAL CASES
Standard 8- Standard 8-2.1 Release of information by law enforcement agencies
Standard 8- 2.2 Disclosures by court personnel
Standard 8- 2.3 Conduct of judges
CONDUCT OF JUDICIAL PROCEEDINGS IN CRIMINAL CASES
Standard 8- 3.1 Prohibition of direct restraints on media
Standard 8- 3.2 Public access to judicial proceedings and related documents and exhibits
Standard 8- 3.3 Change of venue or continuance
The following standards govern the consideration and disposition of a motion in a criminal case for change of venue or continuance based on a claim of threatened interference with the right to a fair trial:
(a) Except as federal or state constitutional or statutory provisions otherwise require, a change of venue or continuance may be granted on motion of either the prosecution or the defense.
(b) A motion for change of venue or continuance should be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court's own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.
(c) If a motion for change of venue or continuance is made prior to the impaneling of the jury, the court may defer ruling until the completion of voir dire. The fact that a jury satisfying prevailing standards of acceptability has been selected shall not be controlling if the record shows that the criterion for the granting of relief set forth in paragraph (b) has been met.
(d) It should not be a ground for denial of a change of venue that one such change has already been granted. The claim that the venue should have been changed or a continuance granted should not be considered to have been waived by the subsequent waiver of the right to trial by jury or by the failure to exercise all available peremptory challenges.
Standard 8- 3.4 Severance
In cases in which there is a substantial likelihood that one or more of the defendants will not receive a fair trial because of potentially prejudicial publicity against another defendant, the court should grant severance on motion of either the prosecution or the defense.
Standard 8- 3.5 Selecting the jury
The following standards govern the selection of a jury in those criminal cases in which questions of possible prejudice are raised:
(a) If there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure should take place outside the presence of other chosen and prospective jurors. An accurate record of this examination should be kept by a court reporter or tape recording whenever possible. The questioning should be conducted for the purpose of determining what the prospective juror has read and heard about the case and how any exposure has affected that person's attitude toward the trial, not to convince the prospective juror that an inability to case aside any preconceptions would be a dereliction of duty.
(b) Whenever prospective jurors have been exposed to potentially prejudicial material, the court should consider not only the jurors' subjective self-evaluation of their ability to remain impartial but also the objective nature of the material and the degree of exposure. The court should exercise extreme caution in qualifying a prospective juror who has either been exposed to highly prejudicial material or retained a recollection of any prejudicial material.
(c) Whenever there is a substantial likelihood that, due to pretrial publicity, the regularly allotted number of peremptory challenges is inadequate, the court should permit additional challenges to the extent necessary for the impaneling of an impartial jury.
(d) Whenever it is determined that potentially prejudicial news coverage of a criminal matter has been intense and has been concentrated in a given locality in a state (or federal district), the court should, in jurisdictions where permissible, consider drawing jurors from other localities in that state (or district).
Standard 8- 3.6 Conduct of the trial
The following standards govern the conduct of a criminal trial when problems relating to the dissemination of potentially prejudicial materials are raised:
(a) Whenever appropriate, in view of the notoriety of a case or the number or conduct of news media representatives present at any judicial proceeding, the court should ensure the preservation of decorum by instructing those representatives and others as to the permissible use of the courtroom and other facilities of the court, the assignment of seats to news media representatives on an equitable basis, and other matters that may affect the conduct of the proceeding.
(b) Sequestration of the jury should be ordered if it is determined that the case is of such notoriety or the issues are of such a nature that, in the absence of sequestration, there is a substantial likelihood that highly prejudicial matters will come to the attention of the jurors. Either party may move for sequestration of the jury at the beginning of the trial or at any time during the course of the trial, and, in appropriate circumstances, the court may order sequestration on its own motion. Whenever sequestration is ordered, the court, in advising the jury of the decision, should not disclose which party requested it. As an alternative to sequestration in cases where there is a significant threat of juror intimidation during or after the trial, the court may consider an order withholding public disclosure of jurors' names and addresses as long as that information is not otherwise required by law to be a matter of public record.
(c) Whenever appropriate, in light of the issues in the case or the notoriety of the case, he court should instruct jurors and court personnel not to make extrajudicial statements relating to the case or the issues in the case for dissemination by any means of public communication during the course of the trial and should caution parties and witnesses concerning the dangers of making an extrajudicial statement during trial. The court may also order sequestration of witnesses, prior to their appearance, when it appears likely that in the absence of sequestration they will be exposed to extrajudicial reports that may influence their testimony.
(d) In any case that appears likely to be of significant public interest, an admonition in substantially the following form should be given before the end of the first day if the jury is not sequestered:
During the time you serve on this jury, there may appear in the newspapers or on radio or television reports concerning this case, and you may be tempted to read, listen to, or watch them. Please do not do so. Due process of law requires that the evidence to be considered by you in reaching your verdict meet certain standards; for example, a witness may testify about events personally seen or heard but not about matters told to the witness by others. Also, witnesses must be sworn to tell the truth and must be subject to cross-examination. News reports about the case are not subject to these standards, an if you read, listen to, or watch these reports, you may be exposed to information which unduly favors one side and to which the other side is unable to respond. In fairness to both sides, therefore, it is essential that you comply with this instruction.
If the process of selecting a jury is a lengthy one, such an admonition should also be given to each juror as he or she is selected. At the end of each day of the trial, and at other recess periods if the court deems necessary, an admonition in substantially the following form should be given:
For the reasons stated earlier in the trial, I must remind you not to read, listen to, or watch any news reports concerning this case while you are serving on this jury.
(e) If it is determined that material disseminated during the trial goes beyond the record on which the case is to be submitted to the jury and raises serious questions of possible prejudice, the court may on its own motion or should on the motion of either party question each juror, out of the presence of the others, about exposure to that material. The examination should take place in the presence of counsel, and an accurate record of the examination should be kept. The standard for excusing a juror who is challenged on the basis of such exposure should be the same as the standard of acceptability recommended in standard 8-3.5(b), except that a juror who has seen or heard reports of potentially prejudicial should be excused if reference to the material in question at the trial itself would have required a mistrial to be declared.
Standard 8- 3.7 Setting aside the verdict
On motion of the defendant, a verdict of guilty in any criminal case shall be set aside and a new trial granted whenever, on the basis of competent evidence, the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury. Nothing in this recommendation is intended to affect the rules or procedures in any jurisdiction concerning the impeachment of jury verdicts.
Standard 8- 3.8 Broadcasting, televising, recording and photographing courtroom proceedings
A judge should prohibit broadcasting, televising, recording, or photographing in courtrooms and areas immediately adjacent thereto during sessions of court, or recesses between sessions, except that under rules prescribed by a supervising appellate court or other appropriate authority, a judge may authorize broadcasting, televising, recording and photographing of judicial proceedings in courtrooms and areas immediately adjacent thereto consistent with the right to a fair trial and subject to express conditions, limitations, and guidelines which allow such coverage in a manner that will be unobtrusive, will not distract or otherwise adversely affect witnesses or other trial participants, and will not otherwise interfere with the administration of justice.