{"id":43,"date":"2015-06-01T18:00:51","date_gmt":"2015-06-01T18:00:51","guid":{"rendered":"http:\/\/revolutionsincommunication.com\/law\/?page_id=43"},"modified":"2025-12-22T15:17:52","modified_gmt":"2025-12-22T15:17:52","slug":"pre-trial","status":"publish","type":"page","link":"https:\/\/revolutionsincommunication.com\/law\/ethics\/pre-trial\/","title":{"rendered":"Free Press vs Fair Trial — Rights in conflict"},"content":{"rendered":"
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Albrego Garcia in April, 2025<\/p><\/div>\n

One of the more difficult ethical challenges<\/strong> that news reporters often face is\u00a0 maintaining a presumption of innocence in criminal justice reporting. All too often, zealous prosecutors attempt to prejudice public opinion (and potential jury members) with exaggerated or manufactured claims about a defendant.\u00a0 It is the ethical responsibility of the news media to resist repeating these claims at face value, and — if reported — to place them in a factual context.<\/p>\n

While there are numerous examples of prejudicial treatment of defendants at the local and state levels, an egregious federal example emerged with the case of Kilmar Abrego Garcia,<\/a> a Salvadoran deported from the US in spring of 2025.<\/p>\n

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Gang members imprisoned in El Salvador get a visit from Homeland Security secretary Kristi Noem in March 2025.<\/p><\/div>\n

The facts of the case are: 1) that Garcia entered the US in 2011 at age 16\u00a0 without documentation; 2) that after 2019 he was in the US legally with the permission of an immigration court; 3) that the Trump administration tried to make an example of him by sending him to a prison in El Salvador.\u00a0 To justify this\u00a0 treatment, lied about his status and his supposed criminal history, making repeated\u00a0 inflammatory comments (such as this April 18 White House social media release)<\/a>; 4) that on July 3 a federal court\u00a0 issued a restraining (or “gag”) order\u00a0\u00a0<\/a> forbidding the government from commenting on the case.<\/p>\n

A restraining order<\/strong> is one of several methods that courts may use to level the playing field and keep prosecutors and\/ or media from prejudicing public opinion.<\/p>\n

Other methods include a change of venue (location for a trial); sequestering the jury; review of evidence that may or may not be admitted into a trial; and controlling public \/ press access to a trial.<\/p>\n

This area of law evolved in the post – WWII time period and is active and contentious today.\u00a0 \u00a0Briefly, when a high-profile criminal case is being\u00a0 heard in court, what is the role of the news media?\u00a0 How can the courts protect the rights of everyone concerned?<\/p>\n

This is the question that arises in many cases, such as the 2025 deportation of Abrego Garcia, the 2015 trials of \u00a0Baltimore police officers\u00a0involved in the death of\u00a0Freddy Gray,<\/a> and the 2002 Pulaski, Va. case of Jeffrey Allen Thomas <\/a>who was convicted of the murder of Radford resident Tara Rose Munsey.<\/p>\n

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Demonstrators outside a Baltimore police station April 25, 2015. Defense attorneys argued for a change of venue, saying that there was a “media frenzy” in the pre-trial news coverage.<\/p><\/div>\n

The question in both cases was whether \u00a0a change in venue (trial location) could help or hurt defendants, especially since publicity had reached most of the \u00a0alternative venues anyway. \u00a0 In Baltimore the venue was not changed, and all \u00a0defendants were either acquitted or not prosecuted. In Pulaski, the venue was not changed, but the case was rather different. \u00a0Ultimately, the Virginia Supreme Court concluded that the case should have been moved, because of pre-trial publicity, and ordered a new trial. (In a plea bargain, Thomas accepted a life sentence rather than face the death penalty again.)<\/p>\n

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To grasp the issues at stake, we need to understand the origins of the free press – fair trial problem in communications law. Two of the mainstays of common law and the US Bill of Rights are at issue here:<\/p>\n

FIRST AMENDMENT:\u00a0 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.<\/em><\/p>\n

SIXTH AMENDMENT:\u00a0 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously\u00a0 ascertained by law, and to be informed of the nature and cause of the\u00a0 accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.<\/em><\/p>\n

Criminal cases have been tried in an open, public court as long as the English legal system has been in existence. Despite historical exceptions (such as the Star Chamber of Henry VIII), public trials were usually seen as:<\/p>\n

\u201d \u2026 giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants,\u00a0 or decisions based on secret bias or partiality\u2026\u201d (Chief Justice Warren Burger in Richmond Newspapers v. Virginia, 1980).<\/em><\/p><\/blockquote>\n

Yet this right to a public trial may also present a serious conflict with a defendant\u2019s Sixth Amendment right to a fair a trial. For example, most experienced journalists have known district attorneys (or Commonwealth attorneys) who built their political careers on high conviction rates as prosecutors. One of their major tactics to ensure that\u00a0 high rate involves leaks to the press that create an adverse climate before a trial, with the idea that potential jurors would already have formed some basic ideas about the guilt of the accused.<\/p>\n

Leaks about evidence in upcoming trials are not unusual and are generally acknowledged to be\u00a0 unethical by press and bar associations.\u00a0 The pressures on journalists under those circumstances are directly contrary to the presumption of innocence. And since the defense is not likely to divulge its strategy, or \u00a0sometimes not sophisticated enough to understand the publicity game, there are frequent miscarriages of justice.<\/p>\n

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Journalists and law enforcement personnel need to understand the case law and also the ethics of news coverage in this area.<\/p>\n

Conflicts<\/strong> may include:<\/p>\n

\u2022 Pre-trial publicity<\/strong><\/p>\n