Presence and effect of pretrial publicity

Presence and effect of pretrial publicity

Counsel is obligated to assure, as much as possible, that the client receives a fair trial. This obligation includes eliminating jurors who have been prejudiced by publicity concerning the case. At the same time, however, counsel must consider the effect of questioning jurors about publicity in the presence of other jurors who may not have been exposed to the publicity. It is best to examine jurors separately in chambers about publicity where the likelihood of contaminating other jurors is significant.FN85

Counsel must also determine whether any publicity is damaging. If the publicity goes beyond the evidence, which the jury will be exposed to, it may be possible to appeal to the juror's sense of fair play, and ask him or her to refuse to convict the defendant based on what the juror read in the newspaper or because the evidence actually brought before the court was not the evidence promised in the press. Counsel must be careful not to use improper arguments, from evidence not before the jury, in attempting to spur the jurors' sense of "fair play."FN86