Trial by Media: Where Fact & Fiction Co-Exist in High-Profile Cases

LINCOLN MEMORIAL UNIVERSITY

LAW REVIEW

__________________________________

VOLUME 10 SPRING 2023 ISSUE 2

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TRIAL BY MEDIA:

WHERE FACT & FICTION CO-EXIST IN

HIGH-PROFILE CASES

Sophie Fielder

I. INTRODUCTION

Imagine a scenario where the media captures your face and

every word you say in a trial. Now imagine every social media

platform consumes these images, videos, and words spoken and turns

you into a meme, mocks you throughout the trial, challenges your

testimony, and questions your credibility. Lastly, imagine your

concern, knowing the jury is not sequestered and can access these same

images and influences.

This real-life scenario occurred when over 3 million viewers

turned in for the results of the Depp v. Heard verdict on June 1, 2022.

The world watched and cheered as the judge awarded Mr. Depp $10.3

Ms. Fielder is a Juris Doctor candidate, expected to graduate in May 2023

from Lincoln Memorial University (LMU) Duncan School of Law. She serves

as the Editor-in-Chief of the LMU Law Review. She would like to thank Dean

Melanie Reid for her guidance throughout the development of this Note.

Additionally, Ms. Fielder would like to thank her partner, Gabe Martin, and

her parents, Bridget and Mark, who provide her with unwavering support

throughout all her endeavors.

A Defamation Case to Remember: Statistics from the Record-Breaking Depp v. Heard

Trial, PENNY & ASSOC. (June 16, 2022),

https://www.penneylawyers.com/news/a-defamation-case-to-remember-

statistics-from-the-record-breaking-depp-v-heard-trial/. (Hereinafter

referred to as “PENNY & ASSOC.”).

82 10 LMU LAW REVIEW 2 (2023)

million in damages.

Even though Ms. Heard received $2 million in

damages from her countersuit,

Mr. Depp prevailed in court and

worldwide with public opinion. After the verdict and constantly

throughout the trial, memes and social media posts flooded the internet

with displays of unwavering support for Mr. Depp. As many teased,

“[t]his is the day you will always remember as the day you almost

caught Captain Jack Sparrow!”

Social media consumed the

“highlights” of the trial and quickly created hashtags for supporters to

follow along. Specifically, the internet blew up with belief for

#JusticeForJohnnyDepp earning this hashtag 15 billion views.

comparison, #IStandWithAmberHeard only reached 8.2 million

views.

People formed most of these beliefs and opinions of the trial,

witnesses, and parties to the suit by watching 60-second videos on

TikTok, Instagram, and/or Twitter rather than viewing the trial

themselves. As a result, it became apparent many individuals lacked

knowledge of what the actual lawsuit covered and the governing law

that accompanied it. The U.S. media involvement and public opinion

varied significantly compared to Depp’s U.K. defamation suit

concerning similar issues just two years prior.

Specifically, the U.K.

suit was not televised, had no jury, and did not involve videos or

pictures of the parties or witnesses; in essence, the U.K. suit did not

consider the court of public opinion.

This real-life example poses an obvious and relevant question,

“if the public was affected so greatly by the media’s involvement, was

the jury affected too?” And if so, how can we curb the media’s

Associated Press, Judge Makes Jury’s $10.3M Award Official in Depp-Heard Trial,

U.S. NEWS & WORLD REP. (June 24, 2022, 4:40 PM),

https://www.usnews.com/news/entertainment/articles/2022-06-24/judge-

makes-jurys-10-3m-award-official-in-depp-heard-

trial#:~:text=The%20jury%20found%20Depp%20should,%24350%2C000%20

under%20a%20state%20cap.

Id.

Becky Burkett, The Jury has Spoken! Captain Jack Sparrow has Won!, DISDINING

(June 1, 2022), https://www.disneydining.com/breaking-johnny-depp-wins-

jury-rules-in-favor-of-captain-jack-sparrow-bb1/ (emphasis added).

PENNY & ASSOC., supra note 2.

Id.

Ed Williams QC, Depp v. Heard: A QC’s View on Why the UK and US Outcomes

Were so Different, LAW (June 10, 2022, 5:43 AM),

https://www.law.com/international-edition/2022/06/10/depp-v-heard-a-

qcs-view-on-why-the-uk-and-us-outcomes-were-so-

different/?slreturn=20221016135017.

Id.

TRIAL BY MEDIA 83

undesired and unnecessary influence on the jury’s decision?

Furthermore, considering Mr. Depp’s loss in the United Kingdom

(“U.K.”), did the media storm of attention contribute to Mr. Depp’s

victory in the United States (“U.S.”)?

Media presence in any U.S. courtroom has long included a

debate between the First and Sixth Amendments of the U.S.

Constitution, especially in high-profile criminal trials;

however, even

though less constitutionally protected, the media’s presence remains

felt in civil trials as well. In sum, the First Amendment protects people’s

right to free speech, press, assembly, and religion.

This constitutional

right often serves as the crutch that members of the media and

supporters of the press, specifically within the courtroom context, lean

upon. On the other hand, the Sixth Amendment guarantees the

defendant, “in all criminal prosecutions, . . . the right to a speedy and

public trial, by an impartial jury of the State.”

To no surprise, the Sixth

Amendment’s promise of an impartial jury is often used as the

opposition’s argument for an overabundance of media presence in

pretrial hearings and live-streamed trial coverage. Additionally, how

does a court balance, whether it be in the civil or criminal context, these

guaranteed rights through fair treatment set forth by the Fourteenth

Amendment?

In sum, the ultimate goal is to find a balance between these

constitutional rights, yet the U.S. lacks a consistent approach across

states. Instead, the application of rules regarding cameras in the

courtroom continues to vary across states, while “most federal judges

Rajeev Syal, Why Did the Depp-Heard Libel Outcomes Differ in the US and UK?,

GUARDIAN (June 2, 2022, 2:00 PM),

https://www.theguardian.com/law/2022/jun/02/johnny-depp-amber-

heard-libel-outcomes-differ-us-

uk#:~:text=Less%20than%20two%20years%20ago,he%20was%20a%20wife%

2Dbeater.

Ruth Ann Strickland, Cameras in the Courtroom, FIRST AMEND.

ENCYCLOPEDIA, https://www.mtsu.edu/first-

amendment/article/989/cameras-in-the-courtroom.

U.S. CONST. amend. I (emphasis added).

U.S. CONST. amend. VI.

Linda R. Monk, Due Process Clause, Equal Protection Clause and

Disenfranchising Felons, PBS, https://www.pbs.org/tpt/constitution-usa-

peter-sagal/equality/due-process-equal-protection-and-

disenfranchisement/#:~:text=The%20Fourteenth%20Amendment%20promis

es%20that,choices%20about%20what%20is%20lawful (last visited Nov. 2,

2022).

84 10 LMU LAW REVIEW 2 (2023)

have declined to permit cameras in their courts voluntarily.”

This

discrepancy, alongside the First and Sixth Amendments’ application to

the states through the Due Process clause of the Fourteenth

Amendment, creates inconsistent expectations about the media’s

presence within state courtrooms. Furthermore, concerns about

impacting potential jurors are even more evident when one compares

the U.S.’s approach to balancing its Constitutional protections with

media and how the U.K. handles media coverage in trials and judicial

proceedings, especially within high-profile cases.

This concern is

analyzed globally when high-profile individuals are involved in

multiple suits – one suit in one country and one in another.

How do

we balance fairness and impartiality promised by the Fourteenth

Amendment’s Due Process when different states and even countries

have different rules regarding media coverage, especially in a world

that is not only consumed by technology but also made more accessible

by its use? Part II of this note will explore the histories of the laws that

govern courtroom media coverage in both the U.S. and the U.K. Part III

will examine how these different approaches are manifested in case

law and analyze various methods taken by U.S. states. Lastly, Part IV

will scrutinize the approaches taken by some U.S. states and argue for

a more consistent approach across the U.S. that limits exposure and

influence to potential jurors, especially in high-profile cases. Given the

importance the law and legal community place upon limiting

prejudice, real-time media coverage of judicial proceedings, while

often entertaining and dramatic, is counterproductive in effectuating

fair, unsullied justice. This note does not argue for abolishing media

coverage; instead, this note hopes to create a balance that promotes

justice to all parties within judicial proceedings while maintaining

rights protected by the First, Sixth, and Fourteenth Amendments.

II. WHICH LAWS GOVERN COURTROOM MEDIA COVERAGE?

The U.S. and U.K. “have fundamentally different starting

points when it comes to the reporting of criminal trials.”

The gaps

between these two approaches become more evident as individuals

Strickland, supra note 11.

See Danya M. Chikamoto, Trial by Media: The Risks to Defendants of Differing

US and UK Approaches, KRAMER LEVIN (Mar. 3, 2022),

https://www.kramerlevin.com/en/perspectives-search/trial-by-media-the-

risks-to-defendants-of-differing-us-and-uk-approaches.html.

Id.

Chikamoto, supra note 16.

TRIAL BY MEDIA 85

post on social media to share thoughts and perceptions of trials

captured by media coverage, especially when posts do not accurately

capture the trial’s facts.

Furthermore, these approaches conflict when

cases and technology transcend international borders and the

protections afforded by one country are not afforded by another.

However, to understand this ongoing battle better, one must first

understand what each approach attempts to protect.

A. THE LONG-STANDING BATTLE BETWEEN THE U.S.’S FIRST &

SIXTH AMENDMENTS

a. Freedom Settled in The First Amendment

Americans have long valued the right to express themselves.

Even if taken for granted in today’s world, the ability for someone to

say what she wants, express what she wants, and share her thoughts

on a given subject without government interference remains a

fundamental right.

On the one hand, these sought freedoms are often

challenged, especially as people’s ideas of expression evolve and

change throughout history.

On the other hand, the U.S. Constitution

provides a podium where Americans find footing to stand firm in these

freedoms: The First Amendment.

The First Amendment states, “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.”

Furthermore, throughout history, the

Court has found that this amendment extends beyond the exact

language of the text.

For example, in Stanley v. Georgia, an analysis of

privacy rights and unspoken protections provided for by the First

Amendment was made by Justice Thurgood Marshall; in his opinion,

he stated that “it is now well established that the Constitution protects

See Erin Snodgrass, Social Media Weaponizes Celebrity Defamation Trials Inside

and Outside the Courtroom, Legal Expert Says, INSIDER (May 23, 2022, 8:04 PM)

https://www.insider.com/social-media-weaponizes-celebrity-defamation-

trials-expert-says-2022-5.

See U.S. CONST. amend. I.

Freedom of Expression, ACLU, https://www.aclu.org/other/freedom-

expression (last visited Oct. 26, 2022).

U.S. CONST. amend. I.

Id.

See Stanley v. Georgia, 394 U.S. 557 (1969).

86 10 LMU LAW REVIEW 2 (2023)

the right to receive information and ideas.”

The Court’s conclusion gave

way to the argument that the public holds a right to receive public

information, including what occurs in a courtroom.

In other words,

the public’s right to public information and freedom of the press

provides a constitutional footing for live media coverage.

Furthermore, the Court acknowledged in 2011 that First Amendment

protections evolve alongside technological advances; in sum, “‘the

basic principles of freedom of speech and the press, like the First

Amendment’s command, do not vary’ when a new and different

medium for communication appears.”

As a result, it makes sense that

media presence in the courtroom, especially in high-profile cases, has

increased alongside the ability to broadcast the contents of trials.

With the press’s ability to capture what goes on in a courtroom

and the public’s right to public information, allowing cameras in the

courtroom grants people a new level of insight, detail, and knowledge

of the legal system. Additionally, in theory, it allows individuals “to

see how justice is carried out.”

As a result, confidence in the courts

and legal system may increase.

However, just because the public

holds a right to receive public information does not mean there is a

constitutional right for this information to be televised.

Thus, states

and state judges vary in their allowance of cameras in the courtroom,

especially in weighing the need for media coverage against protections

guaranteed under the Sixth Amendment of the U.S. Constitution.

b. Fairness is Grounded in The Sixth & Fourteenth

Amendments

Alongside generally protecting peoples’ freedom of expression,

the U.S. remains a strong advocate for protecting an individual’s civil

liberties, no matter the status of the individual. In other words,

Id. at 564 (emphasis added).

David L. Hudson Jr., Right to Receive Information and Ideas, FIRST AMEND.

ENCYCLOPEDIA, https://mtsu.edu/first-amendment/article/1549/right-to-

receive-information-and-ideas (last visited Oct. 26, 2022).

Strickland, supra note 11.

Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011) (citing Joseph Burstyn,

Inc. v. Wilson, 343 U.S. 495 (1952)).

Strickland, supra note 11.

See id.

Jake Rossen, Why Are Cameras Allowed in Some Courtrooms and Not Others?,

MENTAL FLOSS (May 3, 2022) https://www.mentalfloss.com/posts/why-

some-courtrooms-allow-cameras (emphasis added).

Id.

TRIAL BY MEDIA 87

ratifying the Bill of Rights in 1791

guaranteed that an individual does

not lose all fundamental rights because a state accuses him of a crime.

Specifically, the Sixth Amendment states:

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 where the crime shall have been

committed, which district shall have been previously

ascertained by law, and to 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 defense.

In essence, this amendment allows a defendant to participate in

fair, unprejudiced judicial proceedings. In conjunction with balancing

media involvement in trials, this protection continues to come up

repeatedly.

For instance, the Court ruled on the first landmark case

addressing prejudices of camera coverage in Estes v. Texas.

In this

case, Estes appealed his judgment on the basis that he was denied due

process under the Fourteenth Amendment “by excessive televising and

broadcasting of his trial.”

The Fourteenth Amendment of the U.S.

Constitution, ratified in 1868,

states, “nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny

to any person within its jurisdiction equal protection of the laws.”

Thus, in Estes, the Court focused on the right of fairness that due

process requires.

In other words, “[e]very procedure [including

televising and broadcasting] which would offer a possible temptation

to the average man to forget the burden of proof required to convict a

defendant, or which might lead him to not hold the balance nice,

clear[,] and true . . . denies the [defendant] due process of law.”

The

Bill of Rights (1791), NAT’L ARCHIVES,

https://www.archives.gov/milestone-documents/bill-of-rights (last visited

Oct. 26, 2022).

See U.S. CONST. amend. VI.

Id.

Strickland, supra note 11.

See Estes v. Texas, 381 U.S. 532 (1965).

Id.

U.S. CONST. amend. XIV.

Id.

Estes, 381 U.S. at 543.

Id.

88 10 LMU LAW REVIEW 2 (2023)

Court then reversed Estes’s conviction on the basis Estes was “denied

due process of law by the circus atmosphere at the trial.”

Furthermore, though the Court emphasized the remaining right to

freedom of the press, it described potential limitations on media and

the public’s access to this information when reporting begins to create

injustice for the parties involved.

Shortly following Estes, the Court heard the case of Sheppard v.

Maxwell, which involved a second-degree murder conviction of

Sheppard after a jury decided he murdered his wife.

Similar to Estes,

the Court analyzed the influence of publicity and media allowed in the

courtroom and its potential effects on the jury.

Again, the Court

emphasized that “due process requires that the accused receive a trial

by an impartial jury free from outside influences.”

Furthermore, as

communications and forms of media evolve, a court retains a duty to

protect the jury, and thus parties to the suit, from undue influence.

Sheppard also speaks on the likelihood of prejudice resulting from

“news prior to trial” and the remedies a tribunal must take to combat

bias, such as a change of venue.

After the Court granted Sheppard’s

writ of habeas corpus, the new jury in Sheppard’s retrial acquitted him,

showing that a limitation of reporters may indeed change the impact of

a trial.

However, in 1981, the Court clarified that states retain the right

to allow cameras in the courtroom regardless of its previous holdings.

In other words, the U.S. Constitution does not completely bar the

media from the courtroom; parties must still show that camera

presence caused them prejudice.

Risk of bias will always be present;

thus, the Court held that “the appropriate safeguard against such

prejudice is the defendant’s right to demonstrate that the media’s

coverage of his case, be it printed or broadcast, compromised the ability

of the particular jury that heard the case to adjudicate fairly.”

Estes v. Texas, 381 U.S. 532 (1965).

Id. at 542.

Sheppard v. Maxwell, 384 U.S. 333, 335 (1966).

Id.

Id. at 362.

Id.

Id. at 363.

Martin Gruberg, Sheppard v. Maxwell (1966), FIRST AMEND. ENCYCLOPEDIA,

https://www.mtsu.edu/first-amendment/article/334/sheppard-v-maxwell

(last visited Nov. 16, 2022).

Chandler v. Fla., 449 U.S. 560 (1981).

Id. at 573.

Id. at 575.

TRIAL BY MEDIA 89

essence, this case opened the door for different state tribunals to allow

different levels of media streaming in the courtroom, depending on

whether and at what point a court feels a defendant may be prejudiced

because of the media’s presence.

Ultimately, at this time, “[a]ll 50 state supreme courts in the

United States allow video cameras under certain conditions.”

However, not all of these conditions are the same or are perceived in

the same manner, and inconsistencies remain concerning how states

treat media coverage and its role in prejudicing parties.

Additionally, while most federal courts do not allow cameras, a trend

is forming wherein “a few federal courts and district courts do allow

video recordings of their proceedings.”

Furthermore, alongside

courts, Congress continues to address the issue of media coverage by

introducing proposals that potentially expand media presence in the

courtroom.

All in all, while inconsistencies remain across state

levels, and changes may be approaching at the federal level, the laws

used by those across the pond display a more restrictive yet consistent

media monitoring method in the courtroom.

c. Monitoring Substantial Prejudice: A Stricter Approach

Demonstrated by the U.K.

While the U.S.’s approach is more permissive, the U.K.’s law

sets forth a more restrictive approach regarding how much media

coverage is allowed in judicial proceedings. For example, the U.K. set

forth limitations on media coverage roughly a century ago, dating back

to 1925.

Specifically, in 1925, Parliament enacted the Criminal Justice

Act.

While Parliament overturned some of this Act, Section 41,

CONG. RSCH. SERV., VIDEO BROADCASTING FROM THE FEDERAL COURTS: ISSUES

FOR CONGRESS (2019), https://sgp.fas.org/crs/misc/R44514.pdf.

Specifically, Part III of this note will address this subject further.

CONG. RSCH. SERV., supra note 54, at 1; see also Administrative Off. U.S.

Courts, Cameras in Court, U.S. COURTS, https://www.uscourts.gov/about-

federal-courts/judicial-administration/cameras-courts (last visited Nov. 16,

2022) (“The Ninth Circuit Judicial Council, in cooperation with the Judicial

Conference, has authorized the three districts in the Ninth Circuit (District

Court for the Northern District of California, the District Court of Guam, and

the District Court for the Western District of Washington)” to permit cameras

in their courtrooms).

Id; see also Sunshine in the Courtroom Act of 2021, S. 818, 117th Cong. (2021-

2022).

Criminal Justice Act § 41 (1925).

Id.

90 10 LMU LAW REVIEW 2 (2023)

governing the prohibition of photographs in court, remains mostly

intact.

This Section states that “[n]o person shall take or attempt to

take any photograph . . . of any person, being a judge . . . juror or a

witness in or a party to any proceeding before the court, whether civil

or criminal; or publish any photograph, portrait or sketch taken.”

Furthermore, Parliament ruled even further on media coverage

when it enacted the Contempt of Court Act of 1981, which further

governs how the media may report on trials and the consequences that

may result.

Section 1 of the Act states, “it is a contempt to publish any

matter which creates a substantial risk of serious prejudice or

impediment to the court of justice in legal proceedings, irrespective of

the intention behind the publication.”

Additionally, Section 4 gives

the court power to control the timing of publications; in other words, if

the court determines that publishing material immediately will result

in substantial risk, serious prejudice, or impediment to justice, then the

court may order postponement of publication.

However, the strict

liability rule created by the Contempt of Court Act of 1981 is not

without exceptions. For example, an exception is allowed for a “fair

and accurate report of legal proceedings held in public, published

contemporaneously and in good faith.”

Alongside the Contempt of Court Act of 1981, the U.K. holds

laws in place that are specific to the reporting of pre-trial hearings.

Specifically, the Criminal Procedure and Investigations Act prohibits

written reports about pre-trial hearings.

Similar to restrictions placed

by the Contempt of Court Act, the sitting judge can overturn this

prohibition “if it is the interests of justice to do so.”

In sum, the

reasoning behind this law is to minimize the risk of potential jurors

becoming biased or prejudiced before trial. Affecting potential jurors is

the most significant risk of allowing media coverage, whether through

Id.

Contempt of Court, Reporting Restrictions and Restrictions on Public Access to

Hearings, CPS (Sept. 9, 2022), https://www.cps.gov.uk/legal-

guidance/contempt-court-reporting-restrictions-and-restrictions-public-

access-

hearings#:~:text=Section%201%20of%20the%20Contempt,the%20intention%

20behind%20the%20publication.

Id.

Contempt of Court Act § 4(1) (1981).

Criminal Procedure and Investigations Act § 41 (1996).

Id.

Chikamoto, supra note 16.

TRIAL BY MEDIA 91

print or online publication services. Thus, the U.K. public often remains

unaware that pretrial hearings or motions are taking place.

As such,

convincing a U.K. judge that pretrial hearings should be reported

seems like a tall order, especially because potential jurors may watch

or read a publication covering a topic that influences a juror’s mindset,

yet it may never be addressed at trial.

The U.K., while mostly retaining these restrictive laws, recently

showed that sometimes the need for media coverage does exist. For

example, since its inception in 2010, the Supreme Court in London

allowed cameras, “and in 2013, the Court of Appeal followed.”

Additionally, while technically part of the U.K., Scotland continues to

have “its own legal system” and technically allows filming in criminal

courts; however, this is not often applied, and courts rarely broadcast

these cases.

Furthermore, as of July 2022, the U.K. passed a law

allowing cameras to be present for sentencing in criminal trials.

While

many may wonder why it’s taken so long for cameras to be allowed in

this type of setting, advocates for limited media coverage have voiced

concern for “cameras . . . turning cases into the sort of media circus seen

around high-profile U.S. trials such as . . . OJ Simpson or, albeit a civil

case, . . . Johnny Depp v. Amber Heard.”

However, this first viewing

by the U.K.’s public of the sentencing of Ben Oliver by Judge Sarah

Munro QC demonstrated the benefits of the public’s ability to observe

judicial proceedings when done in a more controlled manner.

The

cameras focused solely on Judge Munro, not the defendant, and

displayed how judges make their decisions.

The broadcast lacked

emotional and entertaining factors often seen in U.S. trials and instead

helped the public better understand the legal process, showing “how

judges balance aggravating and mitigating factors and are bound by

sentencing guidelines.”

Id.

Dominic Casciani, TV Cameras to Film in Criminal Courts for First Time in

Major Law Change, BBC NEWS (July 27, 2022),

https://www.bbc.com/news/uk-62323453.

Id.

Haroon Siddique, Solemn Sentencing is No Circus as Cameras Enter English

Courts, GUARDIAN (July 28, 2022, 2:05 PM),

https://www.theguardian.com/law/2022/jul/28/solemn-sentencing-is-no-

circus-as-cameras-enter-english-courts.

Id.

92 10 LMU LAW REVIEW 2 (2023)

The U.K. approach demonstrates excluding all cameras is

neither realistic nor fair to society.

However, it exemplifies the

possibility of evolving with technology and the public’s interest in

judicial proceedings and balancing that with mitigating substantial

risk, bias, and unwanted prejudice. Furthermore, the freedom of the

press of U.K. citizens continues to exist while subject to conditions and

restrictions,

which shows the possibility of doing the same in the U.S.

However, finding this balance in the U.S. presents a more difficult

barrier because state approaches remain inconsistent.

III. DIFFERING U.S. STATE APPROACHES TO COURTROOM MEDIA

INVOLVEMENT

Many U.S. state laws regarding media in the courtroom look

similar on paper. However, where things tend to differ is in applying

these laws and interpreting fairness and impartiality regarding parties

to lawsuits. Most media involvement in trials covers high-profile cases,

whether because of the crime or the parties involved. Thus, state

application becomes crucial in these scenarios because the public finds

itself sometimes consumed and enamored, unable to look away from

the television. This section attempts to showcase U.S. states that

participated, or are still participating, in high-profile cases that allowed

and received excessive media coverage, some of which also received

attention in the U.K.

A. CALIFORNIA: THE BIRTHPLACE OF COURTROOM TV

As mentioned in Part II, the Supreme Court held in 1981 that states

may allow cameras in their courtrooms because the U.S. Constitution

does not completely bar media involvement.

However, in its holding,

the Court detailed that camera involvement may violate due process if

it unfairly prejudices the parties.

Today, California Rules of Court

Rule 1.150 define California’s law on broadcasting in court.

It states:

(a) The judiciary is responsible for ensuring the fair and

equal administration of justice. [It] adjudicates

controversies, both civil and criminal . . .

Id.

Chandler v. Fla., 449 U.S. 560 (1981).

Id.

CA. R. CT. 1.150.

TRIAL BY MEDIA 93

photographing, recording, and broadcasting of

courtroom proceedings may be permitted as

circumscribed in this rule if executed in a manner that

ensures that the fairness and dignity of the proceedings

are not adversely affected.

. . .

(e) . . . The judge in his or her discretion may permit, refuse,

limit, or terminate media coverage.

While California’s law textually seems to protect against

unfair prejudice in the courtroom, it received much criticism during

the O.J. Simpson trial of June 1994 for the amount of media

involvement allowed.

During this trial, which took place in Los

Angeles County Superior Court, America participated in a new and

exciting form of entertainment: courtroom TV. A once-expected two-

week-long trial turned into an eight-month-long, dragged-out

movie.

This type of media broadcast, the live-streaming coverage of

a criminal trial, showed how much influence media holds in its ability

to create narratives.

Not only did the judge lose control of his

courtroom, but even the sequestered jury lacked impartiality, taking

only two hours to reach a decision after the trial lasted almost a whole

year.

The media demonstrated its ability to spin a tale as the case

began as one “of the celebrated athlete, the Shakespearean idea of a

great man thrown to the floor, bloodies. Then it became a story about

spousal abuse and then race.”

Accordingly, just because the court sequestered the jury does

not mean it and the judicial process were not adversely affected.

was no secret to the jury the amount of attention this trial received,

nor was it a secret the racial division it created. And while racial

CA. R. CT. 1.150(a), (e) (emphasis added).

Lilah Raptopoulos, The OJ Simpson Case 20 Years Later: Making ‘Trials into

Television’, GUARDIAN (June 17, 2014, 11:57 AM),

https://www.theguardian.com/world/2014/jun/17/oj-simpson-trial-

cameras-court-justice-culture.

Id.

94 10 LMU LAW REVIEW 2 (2023)

identity may very well have been part of the defense’s strategy,

resulted in jury members feeling the pressure of their decision, not

because a man allegedly committed murder, but because any

“incorrect” verdict would be broadcasted directly back to their

communities.

As a result, “[i]ronically, a technology we

incorporated into the courtroom to show us how justice works

ultimately divided America.”

In 2021, almost thirty years later, taking a separate viewpoint

from that shown in Simpson, the United States Northern District Court

of California restricted live televising of the Elizabeth Holmes case.

this case, Holmes faced “12 counts of wire fraud and conspiracy to

commit fraud,” which resulted from how she ran her biotech company

and how she and her partner, Ramesh “Sunny” Balwani, deceived her

investors.

This type of high-profile case presents a different kind of

conflict wherein news media outlets covered the case extensively,

including details about Holmes, descriptions of her testimony,

accounts of the case, and Balwani.

Additionally, while the court

restricted live televising, “reporters on the scene live-tweeted

highlights,” keeping the public informed on all the details.

In this

scenario, the issue presented is that Holmes’s partner, Balwani, faced

the same charges in the same court two months after the court convicted

Holmes of four counts related to those listed above, and news outlets

and social media made the details of the Holmes case available to

Ronald Brownstein, Simpson Defense’s Focus on Racial Identity Further Divides

a Nation, L.A. TIMES (Oct. 9, 1995, 12:00 AM),

https://www.latimes.com/archives/la-xpm-1995-10-09-mn-55038-

story.html.

Raptopoulos, supra note 83; Thomas R. Romano, Modern Media & its Effect on

High-Profile Cases, 32 SYRACUSE SCI. & TECH. L. REP. 136, 150 (2016) (“This

caused many people to believe that if O.J. Simpson were found guilty, a race

riot would occur.”); Arthur Gross-Schaefer, et al., Are Media Interference &

Technical Complexities Crippling the Ability of Juries to Deliver Fair Verdicts?, 20 J.

L. BUS. & ETHICS 1, 11 (2014).

Raptopoulos, supra note 83.

Rachel Kraus, Cosplayers and Courtroom Drama: The Elizabeth Holmes Theranos

Trial is Underway, MASHABLE (Sept. 8, 2021),

https://mashable.com/article/elizabeth-holmes-theranos-trial-begins.

Id.

TRIAL BY MEDIA 95

millions around the world.

Thus, how does a court handle this type

of scenario when information regarding a trial has been made available

to potential jurors that may or may not create prejudice towards the

defendant before these jurors ever step into the courtroom? While

present any time co-defendants’ trials are severed, critics still raised

concerns that allowing these circumstances enable the prosecution to

have a second go at conviction, using takeaways from the Holmes trial,

including the jury’s reactions and perceptions of the evidence.

Additionally, in her trial, “Holmes gave emotional testimony,

accusing . . . Balwani of physical and psychological abuse,” and

reporters also shared this information with the public before Balwani’s

trial took place, which potentially influenced juror bias as well.

Ultimately, the jury found Balwani guilty on all 12 counts, eight more

than Holmes.

While it’s hard to know if such media exposure

influenced Balwani’s conviction, it’s also hard to argue that the media’s

involvement in Holmes’s case didn’t influence impartiality towards

Balwani before his trial began.

While the Simpson, Holmes, and Balwani cases all involved

criminal trials, the presence of influential media took its strongest hold

in a recent issue involving civil charges, first heard in the U.K. and later

in the U.S.,

100

both of which presented different results.

101

B. VIRGINIA: SOCIAL MEDIA’S TAKE OVER

The recent and highly publicized Depp v. Heard civil trial took

place in Virginia; the law governing media’s presence in Virginia’s

Kari Paul, Former Theranos Exec Sunny Balwani Convicted of 12 Counts of Fraud,

GUARDIAN (July 7, 2022, 3:10 PM),

https://www.theguardian.com/technology/2022/jul/07/theranos-sunny-

balwani-convicted-fraud-elizabeth-holmes.

Kari Paul, Sunny Balwani Trial Starts Two Months After Elizabeth Holmes’s

Guilty Verdict, GUARDIAN (Mar. 9, 2022, 6:58 PM),

https://www.theguardian.com/technology/2022/mar/09/theranos-sunny-

balwani-trial-begins-elizabeth-holmes.

Yasmin Khorram, Elizabeth Holmes Details Abusive Relationship with Theranos

Ex-Presdient Balwani Ahead of Cross-Examination, CNBC (Nov. 29, 2021, 7:30

PM), https://www.cnbc.com/2021/11/29/elizabeth-holmes-details-

abusive-relationship-with-sunny-balwani.html.

Paul, supra note 96.

100

Robin Levinson-King, Depp-Heard Trial: Why Johnny Depp Lost in the UK but

Won in the U.S., BBC NEWS (June 2, 2022),

https://www.bbc.com/news/world-us-canada-61673676.

101

Id.

96 10 LMU LAW REVIEW 2 (2023)

courtrooms looks similar to those in California. For instance, Virginia

Code § 19.2-266 states:

A court may solely in its discretion permit the taking of

photographs in the courtroom during the . . .

broadcasting of judicial proceedings by radio or

television and the use of electronic or photographic

means . . . in criminal and civil cases, but only in

accordance with the rules set forth hereunder.

. . .

The presiding judge shall at all times have authority to prohibit,

interrupt, or terminate electronic media and still photography coverage

of public judicial proceedings . . . for good cause, the presiding judge

may prohibit coverage in any case and may restrict coverage as he deems

appropriate to meet the ends of justice.

102

The story of Johnny Depp and

Amber Heard’s relationship often graced the pages of tabloids and

popular magazines; however, the view of their relationship changed

after Heard made statements in an article published by Washington

Post in 2018.

103

While Heard did not explicitly name Depp in the article,

many took this to refer to Depp because he and Heard recently

divorced.

104

Heard also questioned potential threats to her acting career

102

V.A. Code § 19.2-266 (emphasis added).

103

Amber Heard, Opinion | Amber Heard: I Spoke Up Against Sexual Violence,

WASH. POST (Dec. 18, 2018, 5:58 PM),

https://www.washingtonpost.com/opinions/ive-seen-how-institutions-

protect-men-accused-of-abuse-heres-what-we-can-

do/2018/12/18/71fd876a-02ed-11e9-b5df-5d3874f1ac36_story.html. The

following statements are those made by Heard in this article that the U.S. jury

found Heard liable for defamation: (1) “I spoke up against sexual violence –

and faced our culture’s wrath. That has to change.” (2) “Then two years ago, I

became a public figure representing domestic abuse, and I felt the full force of

our culture’s wrath for women who speak out.” (3) “I had the rare vantage

point of seeing, in real time, how institutions protect men accused of abuse.”

104

Leonie Cooper, What Did Amber Heard’s Washington Post Op-ed Actually

Say?, YAHOO!SPORTS (June 1, 2022), https://sports.yahoo.com/did-amber-

heard-washington-post-

061332398.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2x

lLmNvbS8&guce_referrer_sig=AQAAAFXq3nG2tUChfmbg04ZcZd0A8Qvut

xyt8A6kXGviHA5vIXR_qK4zcO6zhbJgaOoZeylxTvjdy8IuPnMwvpOpjnSee

REC-

MXW9qHzajW5XfCfDwwBCRPLu5VI3HppECTOUphmI7BD20LBeWJ_G20

TRIAL BY MEDIA 97

if she spoke out further, which many assumed referenced Depp’s

influence in Hollywood.

105

While Depp did not sue Heard immediately

in 2018, an article calling Depp a “wife beater” caused him to sue The

Sun in 2020 for defamation, alleging the statements it made were

false.

106

The trial occurred in the U.K. and solely in front of a judge, Mr.

Justice Nicol, rather than a jury. Nicol held that “[t]he Sun proved Depp

carried out 12 violent attacks on the [Heard].”

107

Thus, The Sun proved

what it published in its article was true, and Depp lost his case.

108

While

most assumed that this tarnished his reputation, Depp then traveled

across the pond and sued Heard personally in 2022 for defamation

resulting from her Washington Post article, which produced very

different results.

109

Instead of losing outright as he did in the U.K., the

U.S. jury awarded him 10.35 million dollars, holding that most of

Heard’s statements were defamatory and damaged Depp’s

reputation.

110

With the same facts presented, evidence, and testimony, why

did Depp lose in the U.K. and win a judgment in the U.S.? International

media attorney, Mark Stevens, concluded the difference was based on

two reasons: (i) the U.S. trial was heard before a jury, and (ii) the media

turned the U.S. trial into a live-streamed entertainment circus.

111

First, Stevens identified a tactic used by lawyers when another

accuses a client of abuse called “Darvo.”

112

In other words, the tactic is

“called ‘deny, attack, and reverse victim and offender.’”

113

What’s

crucial about this tactic, which Depp’s team used in both cases, is that

it does not easily sway judges; rather, instead of hearing evidence

aSIz2SQpvnMtINL_Ye0jmHAQ5#:~:text=In%20the%20Washington%20Post

%20piece,by%20a%20global%20fashion%20brand.

105

Id.

106

David Sillito, Johnny Depp Loses Libel Case over Sun ‘Wife Beater’ Claim, BBC

NEWS (Nov. 2, 2020), https://www.bbc.com/news/uk-54779430.

107

Id.

108

Id.

109

Levinson-King, supra note 100.

110

Associated Press, Judge Makes Jury’s $10.3M Award Official in Depp-Heard

Trial, U.S. NEWS & WORLD REP. (June 24, 2022, 4:40 PM),

https://www.usnews.com/news/entertainment/articles/2022-06-24/judge-

makes-jurys-10-3m-award-official-in-depp-heard-

trial#:~:text=The%20jury%20found%20Depp%20should,%24350%2C000%20

under%20a%20state%20cap.

111

Levinson-King, supra note 100.

112

Id.

113

Id.

98 10 LMU LAW REVIEW 2 (2023)

emotionally, judges view evidence rationally and are less likely to fall

for a tactic such as this.

114

Second, televising the trial considerably influenced the

differing outcomes between the U.S. and U.K. trials.

115

In today’s

world, individuals, including reporters, share news and other

information through social media. During the Depp-Heard U.S. trial,

society saw this forum explode and showed just how easily social

media can create narratives.

116

Through this newfound narrative, and

“[d]espite Depp basically being declared a court-vetted wife-beater in

another trial in England, [the U.S.] trial triggered public celebration of

Johnny Depp” because people’s opinions through social media and

TikTok posts declared it so.

117

For example, users receiving incredibly

high view counts on TikTok found themselves camping outside the

courthouse because their videos “may reach many times more readers

than the newspaper staffer dutifully covering the trial.”

118

This type of

communication poses the most concern towards juries, especially those

that courts do not sequester and are always allowed to retain their

cellphones, which were the circumstances found in the Depp-Heard

U.S. trial, even though the jury was asked not to read about the case

online.

119

Again, under these circumstances, especially considering the

holding found by Justice Nicol in the U.K.,

120

it’s hard to believe that

jurors remained unbiased and all parties were treated fairly under the

eyes of the law when public opinion cast a wide net in favor of Depp,

discrediting Heard’s testimony and making fun of her reactions to

events over and over again in 60-second videos available to be viewed

by any jury member. Even though the court asked the jury not to read

about the case online, how is this ensured when the average person

spends two hours and 27 minutes on social media daily?

121

114

See id.

115

Id.

116

Choire Sicha, The Mainstream Media Lost the Depp-Heard Trial and the Lifestyle

Influencers Turned Correspondents Won, INTELLIGENCER (June 3, 2022),

https://nymag.com/intelligencer/article/johnny-depp-amber-heard-trial-

influencers.html.

117

Id (emphasis added).

118

Id.

119

Levinson-King, supra note 100.

120

Sillito, supra note 106.

121

How Much Time Does the Average Person Spend on Social Media? (2012-2022),

OBERLO, https://www.oberlo.com/statistics/how-much-time-does-the-

average-person-spend-on-social-media#:~:text=your%20free%20trial-

,Average%20time%20spent%20on%20social%20media,also%20the%20highes

t%20ever%20recorded (last visited Nov. 16, 2022).

TRIAL BY MEDIA 99

C. SOUTH CAROLINA: MEDIA & MURDAUGH’S

Like California and Virginia’s laws, South Carolina allows

media coverage in court proceedings but allows the presiding judge to

limit the media under certain situations. For example, Rule 605(f) of

South Carolina Judicial Branch states:

(i) Subject to the requirements of this rule,

representative of the media may use video, still camera

or recorders to cover proceedings in the courts of this

State.

(ii) Media representative must give reasonable notice to

the presiding judge of a request to cover a proceeding.

(iii) The presiding judge may refuse, limit, or terminate

media coverage . . . as may be required in the interest of

justice.

122

The story of the Murdaughs and the small town of Hampton,

South Carolina, already displays cinematic qualities. The Murdaugh

family ran the “legal world in this corner of the state, by running the

prosecutor’s office and a large civil law firm”

123

and were rumored to

be behind many Hampton scandals.

124

Having felt the Murdaugh’s

influence, “[m]ost of Hampton’s 2,600 residents know Alex

Murdaugh.”

125

However, the town felt a massive shift when police

found Paul and Maggie Murdaugh murdered, and the State accused

Alex Murdaugh, husband and father of the victims, of the crime.

126

122

S.C. JUD. BRANCH 605(f).

123

Associated Press, In Murdaugh Family Scandal, Tiny South Carolina Town

Shaken, LIVE 5 WCSC (Sept. 28, 2021, 5:04 AM),

https://www.live5news.com/2021/09/28/murdaugh-family-scandal-tiny-

south-carolina-town-shaken/.

124

Jeffrey Collins, Missing Law Firm Money is 5th Investigation into Murdaughs,

AP NEWS (Sept. 13, 2021), https://apnews.com/article/business-south-

carolina-650585b8a6bb5291a11b7575fe3d5833. Investigations against the

Murdaughs include (i) the murders of Alex Murdaugh’s wife and son, (ii)

missing money from a law firm, (iii) Alex Murdaugh’s report that someone

tried to shoot him on the highway, (iv) obstruction of an investigation into a

2019 boating accident that involved Paul Murdaugh and resulted in a death,

and (v) the death of a 19-year-old man from July 2015.

125

Associated Press, supra note 123.

126

Id.

100 10 LMU LAW REVIEW 2 (2023)

While the murders occurred in June, Alex Murdaugh’s trial will

occur in January 2023 in South Carolina’s Colleton County

Courthouse.

127

Even though the trial has yet to begin, media coverage

continues to flood the local community and country with information

regarding the murders, pre-trial hearing details, and videos capturing

Murdaugh in the courtroom.

128

Additionally, not only has the media

swarmed the details of the case, exposing information to the public and

potential jurors, but this was also done after both sides in the

Murdaugh case “requested a gag order to keep motions that might

include evidence sealed for the case[,] citing the media attention.”

129

Judge Newman ultimately denied the gag order requests, which would

have resulted in case details not being shared with the public if granted,

supporting his decision by stating he “typically disfavors” these types

of orders.

130

While it may be no surprise that Judge Newman saw no

point in completely barring media coverage, it does pose questions

regarding constitutional implications as pre-trial hearings are streamed

and posted online for all viewers.

131

For example, what happens if a

potential juror sees something in a pre-trial hearing later ruled as

prejudicial and kept out of trial? Under these circumstances, questions

regarding a defendant’s right to an impartial jury and due process

begin to surface.

While the process of voir dire and change of venue is meant to

protect prejudices such as these,

132

these tools alone do not weed out

all potentially partial jurors, especially those that grew up in a town

controlled by the Murdaugh family and find themselves enamored by

the details of the trial. Additionally, with technology’s omniscient-like

presence, I fear courts will potentially find themselves in a sticky

situation where voir dire and venue changes no longer protect

prejudices as the media stretches beyond physical boundaries.

127

Dylan Leatherwood, Murdaugh Murder Trial Set for January 2023, LIVE 5

WCSC (Oct. 13, 2022, 7:14 PM),

https://www.live5news.com/2022/10/13/murdaugh-murder-trial-set-

january-2023/.

128

Id.

129

Id.

130

Id.

131

See Julia Varnier, Pre-Trial Hearing Takes Place as Murdaugh Defense Team

Attacks State’s Case, WPDE (Oct. 20, 2022),

https://wpde.com/news/local/alex-murdaugh-murder-charge-evidence-

former-attorney-paul-maggie-murdaugh-moselle-property-prominent-south-

carolina-family-court-hearing-florence.

132

Steven Senne, Pretrial Publicity’s Limited Effect on the Right to a Fair Trial, REP.

COMM.FREEDOM PRESS (last visited Nov. 9, 2022).

TRIAL BY MEDIA 101

Ultimately, as the Murdaugh trial approaches in the new year, the

voir dire process will prove ever-crucial in weeding out impartial

jurors as the court system attempts to hold up fundamental rights

protected by the U.S. Constitution.

IV. FINDING A BALANCE BETWEEN MEDIA COVERAGE AND JUROR

IMPARTIALITY IN HIGH-PROFILE CASES

Today’s world, and its technology, is one that no one, not even

the law, could have anticipated. Technology makes the world smaller

than we ever knew possible; it easily connects people thousands of

miles apart. However, it threatens foundational rights grounded in the

U.S. legal system. The previous overviews of Simpson, Holmes, Depp v.

Heard, and Murdaugh exemplify different challenges that court systems

and lawmakers face when a high-profile case exists. A case turns high-

profile either because of the notoriety of the parties involved or the

gravity of the alleged crime(s).

133

Furthermore, it is already well-known that once a case is known

to be high-profile, it “attracts enough media or public attention that the

court must or should make significant alterations to ordinary court

procedures to manage it.”

134

However, after analyzing these different

scenarios, states have failed to make appropriate alterations to ensure

jurors remain free from outside influence. While it is difficult to

eliminate technology’s influence, it is possible to limit it. On the one

hand, that’s not to say that media should not be present in a courtroom;

the public retains the right to freedom of the press and the right to

receive information. For example, knowing what charges an accused

receives, how judicial proceedings take place, and how the judge

decides are crucial in keeping the public informed. On the other hand,

however, states can take steps to balance necessary media coverage and

juror impartiality better. As a result, U.S. states should (i) pass a law

regarding necessary venue changes or lapses in time when pre-trial

publicity is too prejudicial, (ii) pass a law that eliminates streaming and

broadcasting of pre-trial hearings, and (iii) insist courts weigh certain

factors before allowing live-televising of high-profile cases to ensure

U.S. judicial proceedings consistently maintain justice.

133

GREG HURLEY, MANAGING HIGH-PROFILE CASES, NAT’L CTR. STATE CTS. 1

(2007), https://nacmnet.org/wp-content/uploads/Managing-High-Profile-

Cases.pdf.

134

Id.

102 10 LMU LAW REVIEW 2 (2023)

A. NECESSARY VENUE CHANGES OR LAPSES IN TIME

A change of venue, gag order, and/or jury sequestration have

often been the answer to mitigating any pre-existing court or juror

prejudice. Specifically, gag orders are used “to control publicity and

protect the right to a fair trial by prohibiting parties or their lawyers

from speaking publicly about the case.”

135

While gag orders provide

some protection, they sometimes raise free speech concerns; plus, the

media retains the right to continue to capture videos and pictures of

the trial. Thus, these orders do not do much to limit prejudices

demonstrated in the Holmes/Balwani scenario. Additionally, jury

sequestration, defined as “keeping all members of the jury away from

the public and press,” is extremely rare.

136

Therefore, a change of venue

or lapse in time between trials is most likely the most efficient way to

mitigate the media’s prejudicial effects.

In a criminal trial, as defined by the Judicial Counsel of

California, if “a change of venue is permitted . . . the court believes the

defendant cannot receive a fair trial in a given county.”

137

As mentioned

above, the necessary change of venue became most evident in the

Balwani case, as he was prosecuted in the same court only two months

after the court rendered the Holmes decision. Under these

circumstances, i.e., when two high-profile defendants of different suits

involve an overwhelming number of similar facts, the second trial

should not be heard by the same court only two months later. Even

without the first case being live-televised, this scenario poses prejudice

because it introduces potential jurors from the same jury pool to

information regarding the second defendant. For example, whether

true or not, the media covered Holmes’s testimony about Balwani’s

abuse and created a narrative about his character that jurors often find

influential. As a result, his case was likely heard by an impartial jury,

thus violating his constitutional rights to an impartial jury and equal

protection under the law.

This type of prejudice is not combatted by limiting media

coverage because, under these circumstances, the Holmes trial did not

135

E.A. Gjelten, Gag Orders: Balancing Free Speech and Fair Trials, LAWYERS.COM

(Jan. 19, 2021), https://www.lawyers.com/legal-info/criminal/criminal-law-

basics/criminal-trials-gag-orders-control-publicity.html.

136

Benson Varghese, Jury Sequestration: What is it and What’s the Purpose? [2023],

VARGHESE & SUMMERSETT, https://versustexas.com/jury-sequestration/ (last

visited Jan. 23, 2023).

137

JUD. COUNS. OF CAL., FACT SHEET: CHANGE OF VENUE IN CALIFORNIA 1 (2021),

https://www.courts.ca.gov/documents/chgofven.pdf.

TRIAL BY MEDIA 103

receive live-televising. However, this example shows that even without

live-televising, media coverage of a high-profile case may lead a juror

not to adjudicate fairly because they cannot distinguish between

information learned before the second trial and evidence heard during

the second trial. Of course, a necessary change of venue can’t solve all

these potential problems because, as previously stated, technology and

trial reporting transcend boundaries; however, it is a good place to

start.

On the other hand, if a court determines a change of venue is

inappropriate, a lapse of time between the first and second trial allows

for the media attention to “die down.” In essence, less immediate

media attention allows potential jurors to forget information they’ve

previously read or heard from the media. For example, consider the

DeLorean case from 1983; John DeLorean was charged with

“conspiring to sell and distribute $60 million of cocaine,” and he chose

Howard Weitzman to represent him.

138

During the time leading up to

the trial, DeLorean and his case received extreme publicity because he

was an international figure.

139

Specifically, a 60-minute episode

containing highly prejudicial information regarding some facts of the

case was set to air before the trial began.

140

In his efforts to defend his

client, Weitzman requested a temporary restraining order on the 60-

minute episode, which the court ultimately granted; however, CBS

immediately protested it based upon First Amendment rights,

appealed the order to the Ninth Circuit, and Weitzman attempted to

combat the First Amendment rights with DeLorean’s guaranteed right

to a fair trial under the Sixth Amendment.

141

Regardless of Weitzman’s

efforts, the Ninth Circuit allowed CBS to air the episode, which

featured “DeLorean toasting the future over cocaine claiming ‘it’s

better than gold!’”

142

However, the presiding judge over the case, Judge

Takasugi, disagreed with the Ninth Circuit’s holding and found the

airing of the 60-minute extremely prejudicial.

143

As a result, “in an

attempt to lessen the negative impact on potential jurors, [he]

postponed the trial until March the following year.”

144

Following these

events, between October and March, Weitzman worked tirelessly to

weed out potential jurors that were heavily affected by watching the

138

Greg Gorman, Howard L. Weitzman in LADIES AND GENTLEMEN OF THE JURY:

GREATEST CLOSING ARGUMENTS IN MODERN LAW 79 (2000).

139

Id. at 88.

140

Id. at 96.

141

Id. at 94-95.

142

Id. at 96.

143

Id.

144

Id.

104 10 LMU LAW REVIEW 2 (2023)

60-minute episode; for example, he issued 42-question questionnaires

and asked hypotheticals during the voir dire process that questioned

what viewers saw in the 60-minute episode.

145

Ultimately, because of

Weitzman’s efforts to persuade jury members to have an open mind,

the jury acquitted DeLorean.

146

Immediately after the airing of the 60-

minute episode, 92% of potential jurors thought DeLorean was guilty,

and more than 50% were “excused because they conceded they could

not overcome their anti-DeLorean bias.”

147

Thus, one may conclude

that creating more distance between the episode air date and the actual

trial assisted Weitzman in his persuasion that DeLorean was innocent.

DeLorean demonstrates that one tactic that helps combat the

prejudicial media effect is a lapse of time between the trial and the high

volume of media attention a defendant receives. In other words, a lapse

of time theoretically decreases the prejudicial effects that the media

may have on potential jurors.

Thus, to mitigate potential juror bias based on extensive pre-

trial media coverage, courts should consider changes to the venue

and/or a lapse in time, specifically when considering high-profile

cases. For example, states should pass a law that first defines what

qualifies as a high-profile case, knowing the media reaches a level of

influence in cases such as these, and restrict courts from too quickly

hearing a defendant’s trial that involves an overabundance of

overlapping facts that would potentially lead to prejudice. Under these

circumstances, the court is presented with two options: (i) wait to hear

the case until an amount of time passes where media influence subsides

or (ii) change the venue in the hope that a different county will have

less coverage and thus less potential bias. The Balwani case

demonstrates that two months is not enough time between the first and

second suits to limit impartiality. However, there is no other

measurement to define how much time is not enough or too much.

Therefore, states must decide which timeline works best for limiting

prejudice, at least starting at a bottom line of three months, considering

the timeline in Balwani presents too short of time.

B. PROHIBITING BROADCASTS & STREAMING OF PRE-TRIAL

HEARINGS

Currently, states do not differentiate between how courts

should analyze pre-trial hearing media coverage and media coverage

145

Id. at 97, 99.

146

Id. at 81.

147

Id. at 98.

TRIAL BY MEDIA 105

during the actual trial. For example, as mentioned earlier, South

Carolina’s law governing media involvement is broad and only

mentions “court proceedings” rather than implementing different

standards regarding pre-trial hearing broadcasts and coverage during

the trial.

148

On the other hand, the U.K., through its Criminal Procedure

and Investigations Act, is specific to pre-trial hearings and completely

prohibits any written reports about pre-trial hearings.

149

While a judge

can overturn this restrictive law if he or she deems it necessary to

promote justice, this U.K. law is presumably prohibitive because it’s

extremely important for potential jurors not to see information about a

trial before actual trial involvement. In other words, restricting pre-trial

hearing media coverage limits a potential juror’s preconceived bias of

the defendant or evidence that may be introduced at trial.

These concerns and risks are just as present, if not more so, in

the U.S. Allowing a live-streamed broadcast of pre-trial hearings that

are made available online potentially results in extremely prejudicial

effects. In essence, allowing videos and recordings of pre-trial court

proceedings can lead to a defendant not having a fair trial by an

impartial jury, especially in the criminal context. The following dangers

likely exist when pre-trial hearings are recorded by the media and

posted online for potential jurors to view: (i) viewers may hear

excluded evidence (e.g., a confession) that is never presented at trial,

(ii) viewers may prejudge the case based upon what they watch or see,

thus tainting the jury pool, and (iii) defense witnesses may be deterred

from coming forward. The Murdaugh case is a real-life example of how

these dangers are present today in judicial proceedings in U.S. court

systems. Most of Murdaugh’s pre-trial hearings were live-streamed or

videoed and made available for the public to view on websites. As

stated previously, this type of media coverage heightens the potential

prejudicial effects, especially in high-profile cases, and even more so

under the circumstances like Alex Murdaugh, wherein a community is

enamored with the Murdaugh family and the information related to

the trial. As technology continues to evolve and high-profile trials

continue to exist, these potential dangers will continue to grow.

As a result, U.S. states should enact a law specific to pre-trial

publicity similar to the U.K.’s existing law, the Criminal Procedure and

Investigations Act, that limits media coverage. However, instead of the

law prohibiting written reports and publications like the U.K., it should

instead prohibit live-streaming and video broadcasts of pre-trial

hearings. Video media has the largest potential for prejudice because

148

S.C. JUD. BRANCH 605(f).

149

Criminal Procedure and Investigations Act § 41 (1996).

106 10 LMU LAW REVIEW 2 (2023)

potential jurors can view the court proceedings themselves.

Additionally, limiting the law to the prohibition of live-streaming and

video broadcasts ensures that First Amendment protections remain

intact since the media is not completely barred from reporting and

informing the public on information related to court proceedings.

States should model a law focusing on pre-trial hearing publicity after

the following language:

Restrictions on Pre-Trial Hearings

(1) Except as otherwise provided by this section –

a. No pre-trial hearing shall be live-streamed

and published by any media outlet.

b. No pre-trial hearing shall be video-recorded

and broadcasted by any media outlet.

(2) The judge dealing with a matter falling within

subsection (1) may order that subsection (1) not

apply if it is the representations of the accused that

it is in the interests of justice to do so.

150

Adopting and enacting a law such as this allows for the protection

of the First, Sixth, and Fourteenth Amendments. In sum, it provides for

the freedom of the press, the right to receive information, a fair trial, an

impartial jury, and the right to receive equal fairness and equal

treatment to co-exist. Thereby, it further promotes justice and integrity

within judicial proceedings without violating any constitutional rights.

C. LIMITING LIVE-TELEVISED TRIAL COVERAGE

Concerns about protecting First Amendment rights are raised

when proposals about limiting live-televised trial coverage arise.

Specifically, not only does the media serve as the ultimate conduit

between the public and knowledge surrounding the news and global

events, but it is also an essential function of involving the public in

judicial proceedings. One of the media’s main functions within this

context is keeping the community involved and all viewers informed

on judicial practices. As stated previously in Stanley, the public has a

right to receive information, and the press retains the right to publicize

150

This proposal of law is modeled after the U.K. law, Criminal Procedure and

Investigations Act § 41 (1996).

TRIAL BY MEDIA 107

it.

151

Additionally, by reporting on judicial proceedings, the media

holds courts accountable by publicizing their decisions and actions.

Lastly, by including the public, the media coverage may aid in finding

additional evidence through witness testimony of someone that

watches the coverage and decides to come forward. In sum, media

involvement in judicial proceedings is necessary; there is no doubt

about that. However, the media’s ability to report and the public’s right

to receive information must be balanced with the defendant’s right to

a fair trial and to be treated equally under the law. In other words, the

media’s involvement must be within reason. The Sixth and Fourteenth

Amendments clearly emphasize the importance of equal treatment and

fairness through judicial proceedings, and while courts should allow

the reporting and media coverage of all public trials and public

information, there is no constitutional footing always to allow live-

televising of high-profile cases when it presents challenges for jurors to

adjudicate fairly.

In today’s technology-driven world, many argue social media

is the problem that facilitates opinions that wrongfully taint the jury;

however, social media does not do this alone. Specifically, the U.S. Depp

v. Heard trial demonstrated that the social media posts that caused the

most potential bias and influence were from live clips of the trial. For

example, when Heard blew her nose during the trial, social media

captured this and subsequently created a story that she snorted cocaine

during the trial.

152

However, news outlets did not report this or publish

this; instead, TikTok served as the source of this false narrative, and

users captured the video by directly live-streaming the trial at home.

153

Furthermore, live-streaming the trial gave way to the different

results between the U.K. and U.S. trials involving Depp’s defamation

claims, especially since the U.S. trial involved a jury. The U.K. judge

did not have to confront the media circus that erupted in the U.S.

151

See Stanley v. Georgia, 394 U.S. 557 (1969).

152

Amanda Hess, TikTok’s Amber Heard Hate Machine, NY TIMES (June 1, 2022),

https://www.nytimes.com/2022/05/26/arts/amber-heard-tiktok-johnny-

depp.html.

153

Amber Heard Snorting on Stand, TIKTOK,

https://www.tiktok.com/discover/amber-Heard-snorting-on-

stand?lang=en (last visited Nov. 21, 2022). The search results for “amber heard

snorting on stand” produced videos that in total received 30.4 million views;

Melody (@melodyboswelll), TIKTOK (May 6, 2022),

https://www.tiktok.com/@melodyboswelll/video/7094591211062807814?is

_from_webapp=v1&item_id=7094591211062807814&lang=en. This video

alone received 267,600 views, and the user posed a question in the video,

“wonder if the jury noticed her snorting.”

108 10 LMU LAW REVIEW 2 (2023)

because, as previously mentioned, stricter laws govern the U.K. press:

The Criminal Justice Act § 41 and The Contempt of Court Act of 1981.

For example, in the U.K. case, the law prohibited the press from

capturing pictures of the parties or the judge in the courtroom, a live-

streaming of the trial, and news outlets from publishing articles or

photos, which create a substantial risk of serious prejudice or

impediment to the court of justice in legal proceedings.

154

Thus, the

U.K. laws in place presumptively limit the media’s involvement,

regardless of whether a jury is involved or not. Therefore, when

examining the media’s involvement in U.S. high-profile trials, even

more caution should be exercised when a jury is entailed.

The ability for the public to view every inch of the U.S. trial

through a live stream provided individuals the platform to post their

interpretations of events, including perspectives and alternatives of the

truth, which led to more “likes” and higher view counts. Thus, the live-

streaming of the trial instigates overreaching social media involvement

in high-profile cases. For instance, Depp’s heart-throb status grew

exponentially with fans viewing the trial on the screen.

155

Instead of the

live-streamed event splitting up the public between Depp and Heard,

it became apparent quickly that the public and a vast majority of social

media supported Depp and sought to smear Heard.

156

As a result,

viewers turned the trial into their own personal movie and chose

Johnny Depp as their leading actor. This would not have been as

dramatized or as all-consuming to the public or social media without

viewers holding the ability to watch a live-streaming of the trial.

How can this type of live coverage, where hundreds of

thousands of viewers discredit and attack each move or comment the

defendant makes, promote unsullied justice or protect her right to

equal treatment under the law? Although the court requested that the

jury not look at media surrounding the case, how can the court strongly

assert that no member of the jury saw any prejudicial social media post

or became affected by the media circus when even members of the

public contended that they “did not follow the defamation trial

154

Criminal Justice Act § 41; Contempt of Court Act § 4(1) (1981).

155

Hess, supra note 152; see also Katie (@deppheart), TIKTOK (Apr. 23, 2022),

https://www.tiktok.com/@deppheart/video/7089871550270229766?is_from

_webapp=v1&item_id=7089871550270229766. This video received 24 million

views. Comments on the video include: “I would die for this man”; “She looks

so guilty and she knows that he deserves so much better”; “Poor him if he

doesn’t get justice, it’d be an insolence”; “I literally want to give him a hug, I

will admit he raised me through his movies, and to see him be treated like this

by her is heartbreaking.”

156

Hess, supra note 152.

TRIAL BY MEDIA 109

between Johnny Depp and Amber Heard – it followed [them].”

157

In other

words, there was no escaping the media’s presence during the U.S.

Depp-Heard trial; social media users took to Facebook, Instagram,

Snap Chat, and TikTok to post pictures/videos they took as they

watched the trial.

Additionally, there are advanced algorithms designed to feed

social media users videos similar in topic to the videos the user

previously viewed.

158

For example, if someone views a social media

post mocking Heard, the algorithms will then supply him or her with

similarly biased posts regarding Heard. As a result, the court was

erroneous in live-streaming this trial throughout its entirety. Even if

the court allowed live-streaming coverage in the beginning, it made a

mockery of the judicial process by allowing live-streaming to continue

as social media continued to ridicule, sexualize, and discredit all

involved parties in some way, specifically defendant Heard. It neither

promoted justice nor allowed the jury to fairly adjudicate the trial.

Rather, by live-streaming the trial, the court encouraged turning its

courtroom into an entertainment circus.

Ultimately, it’s not appropriate to ask U.S. lawmakers to pass

laws that greatly restrict the press and media involvement in trials

because the media serves an essential function in providing the public

with information. The U.K.’s Criminal Justice Act and Contempt of

Court Act are too presumptively prohibitive for fundamental rights

guaranteed by the U.S. Constitution. However, the analysis for

allowing the live-streaming of high-profile trials should be determined

on a case-by-case basis. Specifically, courts should use a greater amount

of caution and hesitate to allow high-profile cases to be live-streamed.

Accordingly, courts should consider the following factors before

allowing the live-televising of a high-profile trial:

(a) The “Star Power” of Involved Parties

a. This involves considering the celebrity status of the

parties involved and/or the extent of the notoriety of

the parties based on alleged crimes.

(b) Nature of the Proceeding

a. A case may become more prejudicial as it goes on.

During all stages of the trial, a court may decide that

157

Id. (emphasis added).

158

Filipino Menczer, Here’s Exactly How Social Media Algorithms Can Manipulate

You, BIG THINK (Oct. 7, 2021), https://bigthink.com/the-present/social-

media-algorithms-manipulate-you/.

110 10 LMU LAW REVIEW 2 (2023)

prejudice becomes too great and discontinue live-

streaming.

(d) Maintenance of Orderly Proceedings and Judicial Proceeding

Integrity

After reviewing these factors, the court should analyze them

like a balancing test. First, however, the court should consider that the

greater the star power of the parties, the more likely the trial should not

be live-streamed. This is because the extent of a party’s celebrity status

will likely affect all other factors. For example, because he is

categorized as an A-list celebrity, Depp’s fanbase already consisted of

hundreds of thousands of people. These fans created narratives that

cast him as the hero and Heard as the villain. This influence became

extremely damaging to Heard’s credibility and, if viewed by jurors,

prejudicial to the outcome of the case. Furthermore, the amount of

media attention the trial gained turned the courtroom into an

entertainment circus, one that ultimately questioned the integrity of

judicial proceedings, especially because legal experts were so stunned

at the outcome of the case.

159

Lastly, while the nature of the proceeding

involved defamation, it also involved domestic abuse allegations. As a

result, since the U.S. trial, many advocates for addressing domestic

violence continue to express concerns that victims won’t feel

comfortable coming forward after watching how the media picked

Heard apart. Thus, like a domino effect, Depp’s “star power”

ultimately affected all other factors.

In sum, courts should use the abovementioned factors when

determining whether live-streaming a high-profile trial promotes

justice and equal treatment. While eliminating live-streaming of high-

profile cases would quickly mitigate its prejudicial effects, we must also

consider the importance of the freedom of the press, the right to receive

information, and the freedom of speech. Therefore, encouraging courts

to weigh these factors and the ultimate decision more intentionally will

allow for appropriate limitations on a case-by-case basis in high-profile

trials.

159

Jenyne Donaldson, Johnny Depp’s Defamation Verdict Stuns Legal Experts:

‘Complete and Total Vindication’, WRAP (June 1, 2022, 6:53 PM),

https://www.thewrap.com/johnny-depp-amber-heard-verdict-analysis/.

TRIAL BY MEDIA 111

V. CONCLUSION

In conclusion, U.S. states should (i) pass a law regarding

necessary venue changes or lapses in time when pre-trial publicity is

too prejudicial, (ii) pass a law that eliminates streaming and

broadcasting of pre-trial hearings, and (iii) insist courts weigh certain

factors before allowing live-televising of high-profile cases. By

enacting laws such as these, states will create more consistent

expectations concerning the media’s presence within state

courtrooms. While the media’s presence is necessary in judicial

proceedings to inform the public and encourage the freedom of the

press, states must make small yet significant changes to their laws

that support juror impartiality in today’s technology-consumed

world, especially within high-profile cases. These changes would

ensure that rights guaranteed by the First, Sixth, and Fourteenth

Amendments successfully co-exist.