In Virginia, as in many states, joint commissions of the press and bar associations have issued voluntary guidelines for ethical behavior by members of the media and legal professions when pre-trial publicity issues come up.
One typical issue involves the deliberate pre-trial release of potentially incriminating information by police and prosecutors, to the media, in order to influence potential jurors. In the interest of justice, the press should refrain from publishing information about confessions, evidence, opinions about guilt, or other information noted in Guidelines (4) below until it has been admitted into evidence and a jury has been seated.
The News Media Handbook on Virginia Law and Courts, published by the Virginia Bar Association, the Virginia Press Association, and the Virginia Association of Broadcasters has this to say about Free Press Fair Trial issues:
- We respect the co-equal rights of a free press and fair trial.
- The public is entitled to as much information as possible about the administration of justice to the extent that such information does not impair the ends of justice or the rights of citizens as individuals.
- Accused persons are entitled to be judged in an atmosphere free from passion, prejudice and sensationalism.
- The responsibility for assuring a fair trial rest primarily with the judge who has the power to preserve order in the court and the duty to use all means available to see that justice is done. All news media are equally responsible for objectivity and accuracy.
- Decisions about handling the news rest with editors and news directors, but in the exercise of news judgments based on the public’s interest the editor or news director should remember that:
- An accused person is presumed innocent until found guilty
- Readers, listeners and viewers are potential jurors
- No person’s reputation should be injured needlessly
- No lawyer should exploit any medium of public information to enhance his side of a pending case, but this should not be construed as limiting the public prosecutor’s obligation to make available information to which the public is entitled.
- The media, the bar, and law enforcement agencies should cooperate in assuring a free flow of information but should exercise responsibility and discretion when it appears probable that public disclosure of information in prosecutions might prevent a fair trial or jeopardize justice, especially just before a trial.
Guidelines
1. The following information generally should be made available for publication at or immediately after an arrest:
- Accused person’s name, age, residence, employment, family status and other factual background information.
- Substance or text of the charge, such as complaint, indictment, or information and, where appropriate, the identity of the complainant and/or victim.
- Identity of the investigating and arresting agency or officer and the length of the investigation.
- Circumstances of arrest, including time and place of arrest, resistance, pursuit, possession and use of weapons and description of items seized.
- If appropriate, fact that the accused denies the charge
2. The release of photographs or the taking of photographs of the accused at or immediately after an arrest should not necessarily be restricted by defense attorneys.
3. If an arrest has not been made, it is proper to disclose such information as may be necessary to enlist public assistance in apprehending fugitives from justice. Such information may include photographs, descriptions, and other factual background information, including records of prior arrests and convictions. However, care should be exercised not to publish information which might be prejudicial at a possible trial.
4. The release and publication of certain types of information may tend to be prejudicial without serving a significant function of law enforcement or public interest. Therefore, all concerned should weigh carefully against pertinent circumstances the pre-trial disclosure of the following information, which is normally prejudicial to the rights of the accused:
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- Statements as to the character or reputation of an accused person or prospective witness.
- Admissions, confessions or the contents of a statement or alibis attributable to the accused, or his refusal to make a statement, except his denial of the charge.
- The performance or results of examinations or tests or the refusal or failure of an accused to take such an examination or test;
- Statements concerning the credibility or anticipated testimony of prospective witnesses.
- The possibility of a plea of guilty to the offense charged or to a lesser offense, or other disposition.
- Opinions concerning evidence or argument in the case, whether or not it is anticipated that such evidence or argument will be used at trial
- Prior criminal charges and convictions although they are usually matters of public record. Their publication may be particularly prejudicial just before a trial.
5. When a trial has begun, the news media may report anything done or said in open court. The news media should consider very carefully, however, publication of any matter or statements excluded from evidence outside the presence of the jury because this type of information is highly prejudicial and, if it reaches the jury, could result in a mistrial.
6. Law enforcement and court personnel should not encourage or discourage the photographing or televising of defendants in public places outside the courtroom.