Pretrial and Trial Publicity. The constitutional requirement of impartiality does not mean jurors must be completely “ignorant of the facts and issues” of a case. However, publicity, either before or during a trial, can prejudice jurors and violate a defendant's right to an impartial jury. If jurors have potentially been exposed to prejudicial publicity, the court should inquire whether actual exposure occurred. To establish juror partiality, the defendant must show that publicity led to a presumed prejudice through either pervasive prejudicial publicity or actual prejudice in an individual juror.

A trial court's finding of juror impartiality will be overturned only upon a showing of manifest error. To succeed on a motion for continuance or change of venue to another area where publicity about the case is less pervasive, the defendant must show “a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.” The judge may also sequester the jury and provide cautionary instructions to safeguard against prejudice.

The trial judge may not completely close the proceedings to the public unless there is a “substantial probability” that publicity will prejudice the defendant's right to a fair trial and reasonable alternatives to closure cannot adequately protect that right. Other steps that a trial judge may take to protect the fairness of the trial include limiting the number of reporters in the courtroom and regulating their conduct; insulating witnesses from exposure to the media; barring the release of information by police officers, witnesses, and counsel and prohibiting extrajudicial statements by counsel, parties, witnesses, and court officials and warning the media of the impropriety of publishing material not introduced at trial. If none of the remedies are effective in preserving the defendant's right to a fair trial and prejudicial publicity continues during the trial, the judge may order a new trial.


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