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FACTS OF THE MATTER
On June 30, 1995, arguments were made in a
As the case of
1) He contended that the national exposure of the state's prosecution of a notorious murder case would influence them to press for the death penalty to demonstrate a tough stance on crime and satisfy a perceived public desire to punish to the ultimate degree a woman who would cruelly murder her own children;
2) He contended that
witnesses may, consciously or unconsciously, shade their testimony, either
because of the potential intimidation effect of appearing on national
television or through exaggeration (as he called it,
"grandstanding"), to make themselves look better (e.g., more
important or more influential in the determining the outcome of the trial) in
front of a national audience, and more particularly in front of the other
citizens in their small hometown, and that such shading would be detrimental to
Smith's defense. He admitted that he had no empirical, anecdotal, or other
evidence in support of his contentions, although he did mention his feeling
that the public perceived Kato Kaelin to be
"grandstanding" during his testimony in the O.J. Simpson trial in
The state's position was "no position," stating that they were neutral on the question of whether or not cameras stayed in the courtroom. They did assert, however, that the defense contention that televising the trial would influence the state's decisions and prosecution, in particular their decision to ask for the death penalty, was specious, that the state would not alter their conduct of the trial and would ask for the death penalty with or without cameras in the courtroom.
Arguing about the benefit of openness of trial proceedings, Jay Bender, attorney representing media organizations, made the following arguments:
1) that since Susan Smith initiated national interest in herself and her case by bringing the matter to the attention of the national media, the public should be allowed to participate, albeit vicariously, in the follow-up;
2) that there is a centuries-old tradition in the United States that courtrooms and trial proceedings are to be open to any citizen who may care to hear;
3) that the print media have always been allowed in court to report on the proceedings, that electronic media are also capable of reporting on proceedings, and that in recent years, more of the public receive their information from electronic than from print media;
4) that defense objections to cameras in the courtroom are self-serving, in that they are last-minute in order for the defense to use the media, in particular television, to gain sympathy and on-air time for the defendant to present her side of the case without counterpoint, and then exclude cameras when she can be shown in a negative light; and
5) that the public being allowed to be in the courtroom, albeit vicariously through their television sets, would have a cathartic, healing effect on said public as they participated in toto in the trial.
In rebuttal, Mr. Bruck stated that Ms. Smith's rights to a fair trial devoid of outside influences outweighed tradition and any so-called healing effect on the public. Further, he argued that the print media inside the courtroom, and the ability of the electronic media to gather information outside the courtroom, would satisfy both the electronic media and the public's right to know. In addition, he denied anything self-serving in the timing of his filing of motion, stating that he was waiting until he had a full understanding of the state's case against his client. Finally, he asserted that the fact that Ms. Smith initiated national interest in her and her children, and in subsequent events, was irrelevant and carried no legal significance in deciding whether or not cameras should be allowed in the courtroom.
Judge William Howard agreed with defense arguments that televising the proceedings might have an effect on witnesses, and, without sequestration, on the jury [subsequently, the judge decided on sequestration], and applied his ruling to all electronic media. A lack of empirical evidence of any effect on jurors or witnesses by the electronic media being in the courtroom, such as an exaggeration by witnesses of testimonial evidence, was deemed immaterial. Citing the assertion that being a witness is difficult enough for the average person, and that the difficulty might be exacerbated by placing a witness on camera in contravention of that witness's normal experience, he agreed that the possibility existed that it might affect a witness's testimony. Therefore, he ordered the immediate removal of cameras from the courtroom before continuing on to other pretrial motions, recessed to allow time for said removal, and cameras were immediately turned off.
With the advent of the O.J. Simpson murder
The debate revolves around several issues: First Amendment rights of the press to cover trials; modern definitions of what constitutes "the press," in particular whether or not it includes the electronic media (i.e., radio and television) rather than only print media; the public's right to know; the Sixth Amendment right that court proceedings be open to the public; the Sixth Amendment right of a defendant to a fair trial, usually perceived to mean without undue or irrelevant influences; a defendant's right to a trial before an impartial jury of his or her peers; that the instant "fame" that televised witnesses may achieve could influence their testimony by causing them to exaggerate their own importance, reduce their likelihood of admitting to error, or create an expectation of potential financial gain; and that television in the courtroom can cause an undue increase in the length and expense of a trial. All of the above are potential factors in the effect of television on the conduct of trials, and the decision of televising courtroom proceedings.
RIGHT OF THE PRESS TO COVER TRIALS
The pertinent Amendments of Constitution are the First and Sixth. The applicable statements from these Amendments are: First Amendment -- "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . "; Sixth Amendment -- "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 . . . "
WHAT CONSTITUTES "THE PRESS"
Although no law may be made that abridges the freedom of the press, a judiciary can decide just what constitutes "the press." Clearly, when the Constitution was drafted, the press was an extension of speech, the spoken word, that carried what is in the mind of the speaker as he or she presents his or her perceptions and interpretation of those perceptions. For example, a speaker may have been present at an event, and, with words, describe and place interpretations on that event. A printing press made possible putting spoken words in printed form and thereafter disseminate those words to an audience beyond the physical presence of the speaker, thus providing an audience with the speaker's perceptions and interpretations. The framers of the Constitution did not and could not predict that a century later new media would be invented that could directly and widely disseminate the spoken words and the appearance of the physical presence of the speaker, or what that speaker may discuss, or indeed eliminate the necessity of a speaker at all by showing the events themselves.
It would seem logical that if the press was a substitute for spoken words and the physical presence of the speaker, the purpose of the speaker being to describe events, then a medium that allowed both to be presented to an audience would be not only equivalent to but superior to the press, since there would be no intervening step between the speaker and the audience, and thus not a substitute but the actual thing itself. This is particularly true of television, which has the capability of presented sound, sight, movement, and the appearance of reality.
Judicial decisions about press coverage of trials almost invariably revolve around whether or not television should be allowed in the courtroom.1 Since the major difference between television and print media is the immediacy and appearance of the reality of an event, i.e., there is no intervening step or interpreter between the event and the audience, it would seem that there are two possible reasons why television would not be considered "the press": first, it would seem that there is a perception of a danger in an audience having no intervention or interpretation applied to what they perceive. That is, the audience sees and hears an event as it occurs, with no one helping or telling them what they should or should not consider when evaluating that event. Second, there is a perception of a danger of an effect on the participants in an event due to their being seen and heard by a large, and largely unseen and unknown, audience, an audience that is making judgments about the event and the participants.
The first reason, that possibly there are people who believe there is a danger in the public arriving at their own conclusions based on their own perceptions, is one that is unpalatable to many: it runs counter to American a priori assumptions that everybody has a right to make up their own minds, to put their own interpretations on what they see, and that no one has the right to dictate what they can and cannot see, do, or think about anything. Nonetheless, the effects on an audience of audio-visual media (i.e., movies, television) for propaganda purposes, to influence how and about what people think, is well known. Par exemplar, Joseph Goebbels, Hitler's propaganda minister, dictated the content and appearance of all newsreels and movies (with the exception of those on which he was overruled by Hitler himself), knowing that the images he put before an audience, unless it was so heavy-handed that the audience couldn't accept it as real, would influence, if not determine, what they believed. He understood that the appearance of reality, possible in film but not possible in print, had greater effect on the audience than print.
There are those who see a danger in an unrestrained, unedited, uninterpreted presentation of perceived reality to an audience. Such a presentation could be damaging to an audience's perceptions about participants in what they see, in the process of what they see, in the interpretations of the preludes to and subsequent events of what they see. Par exemplar, if a person has a public persona (i.e., the general public believes that the person acts, thinks, is a certain way due to his or her carefully cultivated way of behaving when appearing before the public in controlled conditions) and is placed before the public under conditions that the person cannot control, and thus cannot ensure that what happens does not contradict that persona, he or she runs the possible danger of being shown in a different light to that public, a light that may be damaging to how he or she wishes to be perceived.
Another possible effect could occur when people make a decision about what policy to be followed in a situation, and subsequent events show that policy to be in error. The effect on the policymakers of having their decisions shown to be wrong, with no possibility of alteration or interpretation, could hold those policymakers up to ridicule or dismissal, an effect personally detrimental to them.
An example of the above was two episodes of Edward R. Murrow's See It Now which aired 9 March and 16 March 1954, featuring Senator Joe McCarthy and his UnAmerican Activities hearings. The programs showed McCarthy and the events to the public without interpretation. McCarthy's persona as a defender of liberty and a paragon of American virtue as he tried, starting in 1950, to expose a Communist conspiracy in the United States, were stripped away, revealing him as tyrannical, mean-mouthed, and brow-beating, "whose stock in trade included conflicting statements, misstatements, and half-truths" (McNeil, 1984), apparently more out for himself than selfless. His policies, ostensibly to protect the American people, were shown to be detrimental to the very liberties he was professing to protect. He attempted to defend himself on the 6 April 1954 episode of See It Now, but he appeared as he really was, his persona not possible to maintain on camera. After these programs, McCarthy and his policies lost virtually all of their effectiveness as the American public lost confidence in him and his policies, and soon faded to nothing, ending in his censure by the Senate in December 1954. That his persona and policies were extensively covered in print media for four years without exposing McCarthy for what he was and what he was doing illustrates that television coverage, with its uninterpreted speech and images, can, indeed, have a more powerful effect on an audience than print media.
Other examples: the Vietnam War and its unconstrained coverage by television during the war led to a negative public reaction and a loss of confidence in those who prosecuted the war; the Grenada invasion and its total elimination of television coverage during the invasion led the public to believe something was being hidden from them, reducing their confidence in those prosecuting the invasion; the Persian Gulf War and its carefully orchestrated control of television coverage before and during the war, led the audience to support the war and those prosecuting it. These illustrate that public perceptions of events can be strongly influenced by televised coverage of events, and that how those who have control over that coverage can control public perceptions and reactions to those events.
From the above, it should be clear that those people who have built a public facade over a reality that the public before which they appear might not like, and do not wish to have it penetrated, would fear television and its potential power to penetrate that facade, and would attempt, either by themselves or through their representatives, to reduce or eliminate that potential power.
The second potential effect of electronic media, as opposed to print, covering events is a perceived danger that electronic coverage may have an effect on the participants in an event, due to their being seen and heard by a large, and largely unseen and unknown, audience, an audience that is making judgments about the event and the participants. Such an effect cannot be discounted without denying basic facets of human psychology. Two facets of special importance are selective perception and cognitive dissonance and their effects on what people do when before an audience. When before an audience, people are putting themselves on the line: their ideas, their perceptions, their interpretations, their personae, everything about themselves and how others perceive them. When in a controlled situation, people can manage that perception because they dictate what they say and do; if events do not follow what they believe is best for others' perceptions of them, they withdraw. However, when placed in a situation they can't control, and from which they cannot withdraw, others dictate what they are allowed to say and/or do, which can and does have an impact on how those that observe them perceive them. Under such situations, people may try to manipulate events to create, maintain, or even enhance, the personae they believe an audience has, or could have, of them. Such manipulation could include how they appear and what they say. They may alter their appearance to better exemplify an image. For example, it is a common practice among defense attorneys to dress their clients in an appropriate manner. A defendant's normal appearance may be hair to his waist, jewelry in his ears and nose, blue jeans, boots, torn sweatshirt, and a black leather jacket. However, when he appears in court he adopts a conservative image, with short hair, no jewelry, and suit and tie. Although such an appearance is a complete contradiction to his "street" persona, he believes it is less prejudicial in front of a judge or jury, with a potential result of acquittal or less punishment. Witnesses may undergo similar transformations, altering their appearance from their norm in order to project a better or more impressive image than they actually possess. They may purchase new or higher quality clothing, alter their hairstyle, or wear make-up. They may also be more conscious of their mannerisms.
As well as a potential for manipulating appearance existing, there exists the possibility that people will alter what they say in order to project an image or persona they would prefer an audience to believe, even if that image or persona requires contradicting facts. Such alterations could include exaggeration, elision, or complete falsehoods. Exaggeration is taking some perception, viewpoint or fact and increasing the importance of that perception, viewpoint or fact in relation to any others under discussion. It doesn't necessarily elminate the others; it merely minimizes them in relation. Elision is the elimination of some information in a narrative, in effect emphasizing the information that remains. Complete falsehoods are, of course, lies, the deliberate falsification of information.
THE PUBLIC'S RIGHT TO KNOW . . .
the Sixth Amendment right that court proceedings be open to the public . . .
The concept that court proceedings should be open to the public comes from the first clause of the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . .."
the Sixth Amendment right of a defendant to a fair trial before an impartial jury of his or her peers . . .
The Sixth Amendment outlines a defendent's rights when brought to trial. These rights include that the trial be "speedy and public," that there be "an impartial jury," that the defendent "be informed of the nature and cause of the 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 defence." These rights are delineated in order to provide a defendent a "fair" trial, usually perceived to mean without undue or irrelevant influences, and without an imbalance of power and influence between prosecutor and defense.
that the instant "fame" that televised witnesses may achieve could influence their testimony by causing them to exaggerate their own importance, reduce their likelihood of admitting to error, or create an expectation of potential financial gain . . .
and that television in the courtroom can cause an undue increase in the length and expense of a trial . . .
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Richard F. Taflinger.
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