Computers, Privacy & the Constitution

Presumption of innocence, pre-trial media - and social media - coverage

-- By ClaireCaton - 16 April 2021 - 2nd draft 4 May 2021

All defendants in criminal cases are presumed to be innocent until proven guilty beyond a reasonable doubt. The presumption of innocence, simply stated, is "being innocent until proven guilty". The Constitution does not mention this right by name. Instead, the general principle comes from common law and has been confirmed in numerous court rulings, such as Coffin v. United States in 1895. In a recent case, Ford v. Peery, the court upheld that the presumption of innocence is “the undoubted law, axiomatic and elementary”. Adding that the presumption is “a basic component of a fair trial under our system of criminal justice.” and that its “enforcement lies at the foundation of the administration of our criminal law.”

Pretrial publicity, as defined by the American Psychological Association, is media coverage of a case that occurs prior to the trial and which can lead prospective jurors to form opinions about the case before hearing evidence in court. Freedom of the press enjoys constitutional protection under the First Amendment to the United States Constitution and as such, journalists can freely report on ongoing criminal cases to inform the public.

The growth of the Internet has created a powerful medium through which publicity can be disseminated. The right of a criminal defendant to be presumed innocent and the right of the press to publish information about the alleged criminal acts guaranteed by the First Amendment seem to come into conflict when pretrial publicity threatens to deprive the defendant of an impartial jury.

I. Freedom of the press in the courts

A. Presumption of innocence and pre-trial publicity

Many criminal cases receive extensive media coverage, through social media, newspapers, television. In Estes v. Texas (1965), the Supreme Court overturned a conviction based on the presence of cameras in the courtroom. It held that petitioner’s Fourteenth Amendment due process rights had been violated by the publicity associated with the pre-trial hearing, because the media had created enough distraction to both the judge and the jury as to interfere with the chief judicial task of ascertaining the truth.

Courts are often placed in the position of estimating community bias against a defendant on the basis of media coverage. Prosecutors can be influenced by the media, juries might be affected by the news coverage they may have come across before trial. As media coverage becomes more extensive and accessible in today’s society, it is likely more difficult to find jurors who have not been exposed to relevant pre-trial publicity.

B. The sub judice rule and judicial remedies to counteract prejudicial effects of pre-trial publicity

The sub judice rule regulates the publication of matters which are under consideration by the court. Matters are considered to be sub judice once legal proceedings become active. When the media pronounces on the merits of a matter that is sub judice or builds public opinion on guilt or innocence in criminal trials, it enters the province of courts.

Because doing so would violate the First Amendment right to freedom of the press, courts cannot realistically stop the press from publicizing information, truthful or not so truthful, about criminal trials, notwithstanding the biasing effect of pre-trial publicity. The American Bar Association recognized the harm that prejudicial pre-trial publicity can cause and has suggested a number of methods to counteract its effects. Courts today manage the consequences of mass media press coverage primarily through jury-selection mechanisms and sequestration rather than through instructions or venue changes.

II. Pre-trial publicity in the presently-existing Net society

A. Social media publicity

While the mass media puts the audience in a passive position, social media puts the audience at the center: people are both the audience and the content creator. It seems that the presumption of innocence does not exist in the court of public opinion.

Individuals look at social media with more regularity than any other traditional news medium. Moreover, findings suggest that the more detailed a story becomes, the stronger the judgment against the accused is. News channels that use platforms like Twitter and Facebook are constantly releasing information about a case as it unfolds, giving users who follow them immediate access to that same information. There is a form of repetition on social media platforms that enhances familiarity with a topic: repeated exposure breeds familiarity and people perceive something familiar as true.

B. The courts’ response

Courts are already managing the consequences of mass media press coverage but when facing "social media" publicity, they might need to adjust their practices. It may now be harder than ever for defendants to find wholly untainted jurors in their own communities. At the same time, a change of venue in a high-profile case is very unlikely to solve the bias problem because social media makes all venues equally prejudiced to the defendant. Maybe a solution can be found if we look on the side of social media platforms and their regulation: setting limits on how private citizens share their opinions on ongoing trials, especially if they trigger a negative public perception of the defendant. The court system can also consider limiting juror access to mobile devices during the course of trials because mobile devices give jurors access to a wide range of information they should not be considering in their deliberations.


According to Jeremy Bentham, the act of justice itself cannot be conceived without publicity, which guarantees the quality of justice and its democratic legitimacy. In a democratic society, coexistence of justice and the press seems inevitable. The publicity of justice, criminal in particular, is most likely necessary and must be relayed by the media. In an age where people are increasingly turning to social media for news information it can only be concluded that those same people are vulnerable to some type of exposure to pre-trial publicity. It seems nevertheless that social media poses the same threat to due process as does the “traditional media.”

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r3 - 05 May 2021 - 05:01:23 - ClaireCaton
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