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St. Thomas Law Review

Mercy Hermida

First Page

197

Document Type

Comment

Abstract

An intense conflict has persisted throughout legal history between the practical application of the First and Sixth Amendments. The controversy between these two guarantees has been a constant debate for decades. On the one hand, the First Amendment guarantees the media the Constitutional right to report the news via their right to freedom of expression. Alternatively, the Sixth Amendment guarantees the criminally accused the right to a fair trial decided by an impartial jury. Although these two guarantees are not seemingly contradictory, they ultimately collide when the media, in asserting its First Amendment right, so intrudes and disrupts a criminal trial through massive pretrial publicity, that the inevitable effect is to distort, if not destroy, the judicial process, thereby infringing upon a defendant's right to a fair trial. The struggle between the Constitutional rights to freedom of expression and a to fair trial is pervasive and difficult to resolve in today's society. This has resulted from the "increasingly sophisticated media coverage present at certain criminal trials." The line between justice and increased ratings has become so blurred that it is difficult, if not impossible, to determine for which the courtroom was created to pursue. Media coverage of criminal trials continues to increase and, as a result, continues to narrow the scope of Sixth Amendment guarantees. The judicial function continues to be distorted through extensive pretrial publicity. Guilt or innocence must be determined in the courtroom, not in the newspaper or on the television screen. Evidence is introduced by attorneys and heard by jurors at trials; it should not be dispersed by the media to potential jurors prior to trial. Criminals must be punished for their crimes, not profit from them. Lawyers should seek. justice, not fame and fortune through the media. Witnesses have a duty to testify in a court of law in order to discover the truth, not to lie before a camera to get rich at another's expense. "The law has become a joke" and it is time to make a necessary change before too much is compromised. Two men, California Attorney Willie Brown and California Senator Quentin Kopp, are attempting to make this necessary change by proposing legislation in California to prevent witnesses from selling their stories prior to or during the criminal trial. Both bills have been approved by the State Senate. Senator Kopp's bill has been sent to California Governor, Pete Wilson, on a 22-3 vote and Assembly Speaker Brown's bill was sent to the Governor on a vote of 56- 0. If the Governor signs either bill, it will take effect on January 1, 19 95 ."A compromise between the rights guaranteed by the First and Sixth Amendments must be reached to prevent a defendant's rights to a fair trial from being overrun by unrestrained media coverage. " Both rights are essential to the continuation of the current judicial system and both should be weighed evenly. However, those rights must be balanced so that the "scales of justice" are not tipped in favor of either side. Instead both rights should be respected and upheld to the fullest extent possible, allowing for the goals and purpose of each right to endure. Part I of this article describes the development of the current dilemma arising from the historical origins of pretrial publicity in general, to the narrow issue involving the practice of witnesses profiting by testifying to the media prior to the courtroom. Part II discusses the effects these sales by witnesses have upon the defendant's right to a fair trial, including the direct effects upon trial participants and the jurors' perception of the witnesses when the witnesses, in fact, testify at trial. Part I introduces the terms of Senator Kopp's and Willie Brown's legislation along with the sanctions involved if such terms are violated and the exceptions set out for specified personnel. Part IV analyzes the obstacles that the First Amendment imposes upon such legislation in addition to discussing possible views to overcome these roadblocks. Part V raises possible problems which may arise when legislation, such as Brown's or Kopp's, is placed in effect, and part VI suggests other possible alternatives to ensure that witnesses will not infringe upon the defendant's right to a fair trial.

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