Pretrial Publicity

Pretrial publicity (PTP) refers to media coverage of criminal and civil cases prior to trial. Every era has its high-profile cases involving individuals and businesses—e.g., Roger Stone, Paul Manafort, Dzhokhar Tsarnaev (Boston Bomber), Enron, Timothy McVeigh, O. J. Simpson, John Hinckley, Patty Hearst, John Mitchell, Sam Shepperd, Bruno Richard Hauptmann (Lindbergh baby kidnapping), Sacco and Vanzetti. Serious and notorious crimes and cases involving celebrities tend to receive the most media attention. Much media attention will operate to the detriment of criminal and civil defendants—reporting may emphasize the dastardliness of the defendant’s actions, the effects of those acts on victims, the evidence against the defendant, opinions about the defendant’s guilt expressed by law enforcement personnel, and the like. Whenever a case receives substantial PTP—and especially when the PTP is negative—questions arise about the likelihood that a defendant can receive a fair trial. The concern is that the substantial PTP will bias prospective jurors against the defendant and result in a verdict driven by PTP rather than trial evidence. Concerns about the media potentially biasing trials pit First Amendment guarantees of a free press against Sixth Amendment rights of defendants to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Of course, if media coverage has been substantial and negative, a number of questions arise: has the deck been stacked against a defendant? To what extent? How can this be proven? If there is improper bias, what are the solutions—delay the trial? Give the defendant expanded opportunities to find unbiased jurors? Rely on judges to instruct jurors to put aside their biases (and rely on jurors to do so)? Change the trial to another venue—if there is one where the PTP has not been so voluminous or negative? A substantial body of empirical research has developed over the past fifty years that seeks to answer such questions and do so using reliable research methods.

Trial by Tabloid: Can Implicit Bias Education Reduce Pretrial Publicity Bias?

The Western District of Washington recently developed an educational video to reduce jurors’ implicit biases. Little is known regarding the effectiveness of this proposed remedy to address a range of implicit biases. This study tested whether this educational video reduces pretrial publicity (PTP) bias. A total of 330 undergraduate participants were randomly assigned to read PTP or unrelated articles. An average of 9 days later, they were randomly assigned to watch the educational video prior to viewing a murder trial. Those exposed to PTP were more likely to convict and found the defendant more culpable and less credible. The educational video did not reduce PTP bias. A more tailored debiasing strategy may be needed to overcome the biasing effects of PTP. Differences in legal decisions also emerged depending on whether participants completed the second phase in-person or online, which has implications for future data collection modes.

Trial by Tabloid: Can Implicit Bias Education Reduce Pretrial Publicity Bias?

The Western District of Washington recently developed an educational video to reduce jurors’ implicit biases. Little is known regarding the effectiveness of this proposed remedy to address a range of implicit biases. The current study tested whether this educational video reduces pretrial publicity (PTP) bias. A total of 330 undergraduate participants were randomly assigned to read PTP or unrelated articles. An average of nine days later, they were randomly assigned to watch the educational video prior to viewing a murder trial. Those exposed to PTP were more likely to convict (OR = 3.20, 95% CI [1.95, 5.25]) and found the defendant more culpable (d = .64, 95% CI [.42, .86]) and less credible (d = -.33, 95% CI [-.55, .11]). The educational video did not reduce PTP bias. A more tailored debiasing strategy may be needed to overcome the biasing effects of PTP. Differences in legal decisions also emerged depending on whether participants completed the second phase in person or online, which has implications for future data collection modes.

The Effect of Negative Media Exposure and Evaluators’ Attitudes Toward Offenders on Violence Risk Assessment with the HCR-20V3

Structured risk assessment instruments (SRAIs), such as the Historical Clinical Risk Management (HCR-20V3) are increasingly used to inform criminal justice decision-making, highlighting the significance of examining the potential for bias when using these measures and effective strategies to mitigate it. In this experimental study, we examined the possible biasing effects of (1) negative pretrial publicity (PTP) about a person who committed a double homicide and (2) evaluators’ attitudes toward offenders, on scale scores and final risk judgments of the HCR-20V3. Participants (N = 54) included graduate students, clinicians, and researchers who had been trained to complete the HCR-20. Contrary to expectation, negative PTP exhibited no effects on the HCR-20 total scores, subscale scores, or final risk judgments. In line with our hypothesis, more positive attitudes toward offenders were predictive of lower HCR-20 total scores and lower ratings on the Clinical and Risk Management subscales and final risk judgment of imminent violence. These findings add to a growing body of research indicating forensic risk evaluations conducted using SRAIs are not immune to the effects of some types of bias.