Chapter Seven
Trial
The majestic equality of the law forbids the rich as well as the poor to sleep under
bridges, to beg in the streets, and to steal bread.
— Anatole France, 1914
KEY WORDS
Key terms to understand for this chapter…
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Alternate Jurors
Bench Trial
Court Trial
Gag Orders
Impartial Trial-by-Jury
Locked-Down Jury
Petty Offenses
Public Trial
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
• Right of the press and
the public to access to
criminal trials
• Right to a Trial-by-Jury
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
OBJECTIVES
After completing this chapter, you should be able to…
• Explain the differences between a bench and a jury trial.
• Discuss the right of the public and press to attend a
criminal trial.
• Identify what constitutes a public trial.
• Explain the defendant's right to a jury trial.
• Discuss the procedure for waiving a jury trial.
• List what constitutes a petty offense.
• Discuss the rules regarding the size of a jury.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
• By the beginning of the eighteenth century, the accused
was being confronted by witnesses against him/her.
• Witnesses were placed under oath to relate facts of
their own knowledge; hearsay evidence eliminated.
• Juries rendered verdicts based upon the testimony of
witnesses given in open court.
– not what jurors learned about an accusation outside of court
• Rules of evidence were being formulated.
• Trial-by-jury was rapidly becoming part of the judicial
system in Great Britain, and adopted by the colonists.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
• The colonists had deep reverence for trial by jury, and
strongly resented interference by the
king of Great Britain in his efforts
to subdue them.
• This resentment was manifested in
the Declaration of Independence:
– “The history of the present King of Great
Britain is a history of repeated injuries.
– To prove this, let facts be submitted to a
candid world. …for his depriving us in
many cases, of benefits of trial by jury.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
Prosecutor Patricia Hogue
points out defendant
Barbara Atkinson, lower
left, to the jury and Judge
Cliff Stricklin during her
final arguments in a Dallas,
Texas courtroom.
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Accused’s Right to Jury Trial
• To prevent possible future interference with the right to
a trial by jury in the newly formed government, the
Sixth Amendment to the US Constitution contained the
provision that all persons accused of a crime had the
right to be tried by an impartial jury.
• The provision is binding through the Due Process
Clause of the Fourteenth Amendment
– and contained in all state constitutions or statutes
• While the Sixth Amendment did not mention a number
of persons required for a jury, it was generally accepted
the common law rule of twelve persons would prevail.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Right to Jury Trial - Patton v. US
• An accused’s being permitted to waive jury trial, and
heard by a judge alone was practically unthought of.
• It was not until 1930’s Patton v. US that the Supreme
Court held a verdict rendered by a jury of fewer than
twelve members was not a violation of an accused’s
constitutional right to a trial by jury.
• Though the Court in Patton sanctioned the right to
waive right to a jury, it did emphasize the necessity
of preserving the jury trial system.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Right to Jury Trial - Patton v. US
• The Court stated:
– “Not only must the right of the accused to a trial by a
constitutional jury be jealously preserved, but the
maintenance of the jury as a fact-finding body in criminal
cases is of such importance and has such a place in our
traditions that, before any waiver can become effective, the
consent of government counsel and the sanction of the court
must be had, in addition to the express and intelligent
consent of the defendant.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Right to Jury Trial - Duncan v. Louisiana
• The Supreme Court further emphasized importance
of the right to a trial by jury in Duncan v. Louisiana:
– “Providing an accused with the right to be tried by a jury
of his peers gave him an inestimable safeguard against the
corrupt or overzealous prosecutor and against the compliant,
biased, or eccentric judge.”
– “Beyond this, the jury trial provisions …reflect a fundamental
decision about the exercise of official power—a reluctance to
entrust plenary powers over the life and liberty of the citizens
to one judge or to a group of judges.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Right to Jury Trial - Duncan v. Louisiana
• The Supreme Court further emphasized importance
of the right to a trial by jury in Duncan v. Louisiana:
– “Fear of unchecked power, … found expression in criminal
law in this insistence upon community participation
in the determination of guilt or innocence.”
– “The deep commitment of the Nation to the right of jury
trial in serious criminal cases as a defense against arbitrary
law enforcement …must therefore be respected by the States.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Avantages to Jury Trial
• Advantages of a jury trial over a trial by a judge sitting
alone, also referred to as a court trial, include:
– belief that a jury of twelve persons, representing a cross
section of society, may be better able to evaluate the
demeanor of witnesses
– group judgment of a jury is better than that of a single person
– there is a value in community participation in the
administration of justice
– the jury injects the common law test into the legal system
instead of the legalistic viewpoint
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Trial by Judge Alone
• Situations arise in which it may be advantageous to
waive right to jury trial in favor of a court trial.
– the crime may be a heinous one
– emotional involvement of the community may make the
selection of an impartial jury very difficult
– a defendant’s general appearance may be such that a jury
may become prejudiced
– past criminal record may subject a defendant to impeachment
– the defendant may be a part of a group that local feeling is
against, and a jury may convict by association rather than
on facts of the case
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Procedure in the Waiver of a Jury
• After the Patton decision, a large majority of the states
began permitting the defendant to waive trial by jury.
– a few states still do not permit a defendant to waive jury trial
– others permit waiver in misdemeanors but not on felonies
– still others permit the jury to be waived in all cases except
those with a maximum penalty of death
– one state permits a defendant to waive the jury in capital
cases and be tried by a panel of three judges
– a few states permit the jury to be waived in any type of
charge, including capital cases
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Consent to the Waiver of a Jury
• States also differ concerning consent.
– who must give it & how the consent is given
• Some provide that waiver is solely the right of the
defendant, others that consent must be by prosecution
as well as the defendant.
• A few require defendant, prosecution & judge all
to agree to the waiver.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Form of the Waiver of a Jury
• In some states, the defendant must waive the jury in
open court by an express statement to that effect.
– others require the defendant to consent to the
waiver in writing before the date of the trial
• Some hold that unless the defendant demands a jury
trial at the time that he/she enters the plea of not guilty,
a jury trial is automatically waived.
• If the waiver takes place, it is usually before the jury is
selected, but a few states permit the defendant to waive
the jury anytime before the verdict is rendered.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Demanding a Bench Trial
• May the defendant waive the jury and demand a bench
trial, also known as a court trial?
• This was answered by the Court in Singer v. US.
– the Court held that while a defendant could waive right
to a jury trial, there is no correlative right to a bench trial,
recognizing a prosecutor also has a right to demand jury trial
• The Court concluded that forcing a jury trial was not a
violation of any constitutional right of an accused.
• In this regard, many states permit the judge to refuse to
consent to a court trial in lieu of a trial by jury.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Denial of a Jury Trial in Petty Offenses
• Trial by jury is not an absolute right in all instances.
• In 1937’s Duncan v. Louisiana, the Court sanctioned a
nonjury trial to one accused of a petty offense:
– “So-called petty offenses were tried without juries both in
England and in the Colonies and have always been held to
be exempt from the otherwise comprehensive language of
the Sixth Amendment’s jury trial provisions.”
– “…possible consequences to defendants from convictions for
petty offenses have been thought insufficient to outweigh the
benefits …resulting from the availability of speedy and
inexpensive non-jury adjudications.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Determining Petty Offenses
• Although statutes of some states designate certain
offenses as petty, this is not conclusive, and the courts
may render different interpretations of petty offenses.
• As stated by the Supreme Court in Frank v. US, the
most relevant indication of seriousness of an offense
was the severity of the penalty that could be imposed.
– severity of the penalty authorized, not the penalty actually
imposed by the judge
• In Frank case, the Court implied they were relying on
criterion set forth in Cheff v. Schnackenberg.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Determining Petty Offenses
• Cheff adopted the definition of a petty offense found in
18 US Code, section 1, where it is described as:
– “…any misdemeanor the penalty for which does not exceed
imprisonment for a period of six months or a fine of $500.”
• A few states grant a defendant the right to a jury trial in
all misdemeanor charges irrespective of the penalty.
– but deny right to a jury trial on infractions—violations
for which no imprisonment may be imposed
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Juries Comprising Fewer Than 12 Persons
• Laws of the US, as well as of most of the states, require
a criminal trial jury to consist of twelve persons.
• There are a few states where, in misdemeanors the jury
may comprise any number fewer than twelve.
– the US Supreme Court has not approved the use of a jury
with fewer than six members
• As in Patton, in some states it is held that a felony trial
must commence with twelve persons in the jury, but if
one should become incapacitated, trial may continue
with fewer than twelve if agreed to by the defendant,
his/her attorney, and the prosecution.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Bench Trial versus Jury Trial
Juries Comprising Fewer Than 12 Persons
• Some states have broken with the traditional number of
twelve, and have passed laws providing that a jury may
comprise fewer than twelve.
– due to the difficulty of obtaining & managing twelve jurors
• Whether trial by a jury of fewer than twelve is denial of
right to trial by jury is answered in Williams v. Florida.
– in which the Supreme Court held that a jury of fewer than
twelve persons, did not violate the Due Process
• Many courts select alternate jurors, to sit with the jury,
prepared to serve if a juror is excused/disqualified
during trial.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Estes v. Texas
• The Sixth Amendment provides guarantee to a public
trial, to ensure the accused is dealt with fairly.
• Stated by the Supreme Court in Estes v. Texas:
– “History has proven that secret tribunals were effective
instruments of oppression.”
– “…traditional Anglo-American distrust for secret trials has
been variously ascribed to the notorious use of this practice
by the Spanish Inquisition, to the excesses of the English
Court of Star Chamber, and to the French monarchy’s abuse
of the lettre de cachet.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Estes v. Texas
• The Sixth Amendment provides guarantee to a public
trial, to ensure the accused is dealt with fairly.
• Stated by the Supreme Court in Estes v. Texas:
– “Clearly the openness of the proceedings (the trial) provides
other benefits as well (as a safeguard against oppression): it
arguably improves the quality of testimony, it may induce
unknown witnesses to come forward with relevant testimony,
it may move all the trial participants to perform their duties
conscientiously, and it gives the public the opportunity to
observe the courts in the performance of their duties and to
determine whether they are performing adequately.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
What Makes a Trial Public?
• While guarantee to a public trial appears on the surface
to be clear & explicit, it is not without complications.
– what constitutes public trial is not defined by the Sixth
Amendment or by any of the laws of the states
• It is clear that a public trial is one that is not secret.
– commonsense interpretation of public trial is one the
general public is free
to attend, and doors
of the courtroom are
kept open
Female prosecutor addresses the court
during an arraignment, Santa Ana, Ca.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Public Right to Attend
• Courts have been far from unanimous in answering the
question of public exclusion from the courtroom.
• The issue is whether the public may be excluded in any
situation without violating guarantee to a public trial.
– a question usually when a trial involved salacious testimony
• Two cases addressing exclusion of the public from trial
were Richmond Newspapers Inc. v. Virginia and Globe
Newspapers Co. v. Superior Court for the County of
Norfolk.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Closing the Trial - Richmond Newspapers
• The Court in Richmond Newspapers recognized that
the right of press & public to access to criminal trials
was based on the First Amendment of the Constitution.
– not the Sixth Amendment right to a public trial
• After three mistrials, due to interference by spectators,
the defense requested, and the prosecution voiced no
objection to, a closed trial
– under Virginia statutes, the judge granted the request to
close the courtroom to the press and the public
• Richmond Newspapers, Inc., filed an objection, and the
Virginia Appellate Court upheld the judge’s ruling.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Closing the Trial - Richmond Newspapers
• The case was appealed to the US Supreme Court on
grounds that First Amendment freedom of the press
had been violated by barring the press from the trial.
• The Court noted the First Amendment doesn’t mention
the right of public access to a criminal trial explicitly
– but is broad enough in scope to encompass certain rights not
specifically mentioned, inlcuding access to criminal trials.
• The Court stated:
– “Underlying …right of access to criminal trials …is the
common understanding that a major purpose …was to
protect the free discussion of governmental affairs.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Closing a Portion of a Trial - Globe
• Richmond Newspapers concern closing the entire trial.
– leaving question of whether press & public can be excluded
from a portion of the trial
• The Court discussed this in Globe Newspapers:
– “Although the right of access to criminal trials is of
constitutional stature, it is not absolute.”
– “…circumstances under which the press and public can be
barred from a criminal trial are limited; the State’s
justification in denying access must be a weighty one.”
– “… it must be shown that the denial is necessitated by a
compelling governmental interest, and is narrowly tailored to
serve that interest.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Public Exclusion from Pretrial Hearings
• In Gannett Co. v. DePasquale the US Supreme Court
held that press & public may be excluded from pretrial
hearings, such as a pretrial hearing
on the suppression of evidence or a
preliminary hearing.
• Gannett upheld exclusion based on
grounds that adverse prepublicity
could pose a risk to the defendant
and prevent a fair trial.
Associate Justice Harry A. Blackmun, was appointed to the Supreme
Court by President Richard Nixon and served from 1970 to 1994.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Public Exclusion from Pretrial Hearings
• The Court noted there is a difference between the trial
itself and pretrial hearings, and case stated:
– “Publicity concerning pretrial suppression hearings …poses
special risks of unfairness.”
– “… purpose of such hearings is to screen out unreliable or
illegally obtained evidence and ensure that this evidence
does not become known to the jury.”
– “Publicity …could influence the public opinion …and inform
potential jurors of inculpatory information wholly
inadmissible at the actual trial.”
– “This Court has long recognized that adverse publicity can
endanger the ability of a defendant to receive a fair trial.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Public Exclusion from Pretrial Hearings
• As a general rule, a
court will not allow a
closed hearing without
a strong showing of
prejudice to the
requesting party.
Former middle school teacher Debra Lafave, 24, with her attorney John Fitzgibbons, before a hearing at
Hillsborough County Courthouse in Tampa, Florida.
LaFave pleaded guilty to lewd behavior with a teenage boy and was placed on probation.
As part of her probation, Lafave was to abstain from contact with minors under eighteen years of age.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Fair Trial versus Freedom of the Press
• It may be concluded the public is entitled to know
justice is taking place during a criminal trial.
– therefore, with some reservations, permitted to attend trials
• As not all members of the public may be able to attend,
the media have assumed responsibility of informing the
public about what takes place during certain trials.
• The problem arising is how far the news media may go
in obtaining information and reporting it to the public
– courts & media are often in conflict over this question
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Fair Trial versus Freedom of the Press
• When the courts attempt to curtail the media, the media
allege violation of their First Amendment.
• Courts, on the other hand, hold that an accused is
entitled to fair trial by an impartial jury.
– and when that right is interfered with by the
media, they have exceeded their prerogative
• Because of the right of the public to be informed, the
courts generally have permitted reporters to be present
during criminal trials.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Fair Trial versus Freedom of the Press
• Courts concede that when news gathering during trial
becomes disruptive or denies the defendant a fair trial
by an impartial jury, some control must be exercised.
• The Supreme Court has stated:
– “…the chief function of our judicial machinery is to
ascertain the truth. The use of television, however,
cannot be said to contribute materially to this objective.”
– “…experience teaches that there are numerous situations in
which it might cause actual unfairness, some so subtle as to
defy detection by the accused or control by the judge.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Fair Trial versus Freedom of the Press
• After Estes, courts generally prohibited live coverage.
– but media eventually renewed pressure for it
• Regardless of strong arguments against it, more and
more courts are permitting live trial coverage.
• Great strides have been made to protect victims in rape
cases from embarrassment during trial, to encourage
victims to come forth and report such offenses.
• It is believed, due to live coverage of trials, many
victims of all types of crime will not report offenses.
– rather than face testifying before television cameras
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Fair Trial versus Freedom of the Press
• In 1996, the nation watched the televised trial of O.J.
Simpson.
• As in the results of the coverage of that trial, many in
the justice system are seriously concerned about the
effects such coverage.
– not only from the standpoint of the defendant,
but also concerning the
safety of witnesses
Prosecutor Hank Goldberg pleads his case to Judge
Lance Ito in Los Angeles, California District Court
after he was admonished for wasting time.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Gag Orders
• While aware that media is entitled to report events
during a trial, courts have periodically issued orders
limiting information given to the press.
• “Gag orders,” are issued to prevent pretrial/trial
publicity that could deny a defendant a fair trial
– because of the resulting difficulty in selecting and
maintaining an impartial jury
• The media have strongly protested gag orders on the
grounds that such orders violate the First Amendment.
– balancing the right of fair trial with freedom of
the press has continually plagued the courts
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Gag Orders - Sheppard v. Maxwell
• In Sheppard v. Maxwell the Supreme Court criticized a
trial judge for the failure to restrain pretrial publicity.
– Dr. Sheppard was accused of killing his wife
• Prior to the trial, there were numerous newspaper
stories concerning the questioning of the accused.
– articles about his personal life and love affairs were published
– the jury list was published; many prospective jurors received
telephone calls concerning the case
– inaccurate news releases were given by the police
– the judge, up for election, allowed extensive live news
coverage of the trial
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Gag Orders - Sheppard v. Maxwell
• Sheppard, convicted, appealed to the Supreme Court
on grounds that due process of law had been denied.
• The Court reversed the conviction, feeling the pretrial
publicity & live coverage prevented a fair trial.
• The Court stated
– “The courts must take steps by law and regulation that will
protect their processes from prejudicial outside interference.”
– “Neither prosecutors, counsel for defense, the accused,
witnesses, court staff nor enforcement officers coming under
the jurisdiction of the court should be permitted to frustrate
its function.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Gag Orders - Sheppard v. Maxwell
• The Court, in Sheppard, stated trial judges “have the
duty of so insulating the trial from publicity as to
insure its fairness,”
– but did not fix rules to guide the trial judges and
others on what could and could not be printed
• In Nebraska Press Association v. Stewart, the Court
discouraged, but did not rule out, the use of gag orders:
– “This Court has frequently denied that the First Amendment
rights are absolute and has consistently rejected the
proposition that a prior restraint can never be employed.”
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Public Trial
Gag Orders - Sheppard v. Maxwell
• A less restrictive measure suggested instead of issuing
a gag order was the granting of a change in venue.
– many crimes receive such extensive publicity
that change in venue would accomplish little
• Under these circumstances, judges may still issue gag
orders & undoubtedly receive Supreme Court sanction.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
Important topics for this chapter…
• A bench or court trial is a trial by judge alone.
• The Sixth Amendment right to a jury trial applies to all
federal criminal proceedings.
• States may deny an accused a jury trial in cases
involving petty offenses.
• Petty offenses are defined by the Supreme Court as
offenses for which the maximum period of
confinement is six months and a fine of not more than
$500.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• The defendant may not demand a bench or court trial.
• In noncapital cases, a defendant may be tried by a jury
of fewer than twelve persons, depending on state laws.
• If there are fewer than twelve jurors, in most states the
verdict must be unanimous.
• A public trial is a trial in which the public has a right to
attend.
• The public has a limited right to attend criminal trials.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
SUMMARY
(cont.)
Important topics for this chapter…
• The First Amendment gives the press a limited right to
attend a criminal trial.
• A trial judge may issue a gag order that directs the
parties to the trial not to talk to the press or otherwise
release information that would jeopardize a fair trial.
Procedures in the Justice System, Ninth Edition
By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
© 2010 Pearson Higher Education, Inc.
Pearson Prentice Hall - Upper Saddle River, NJ 07458
Chapter End