This blog post examines how investigative reporting shapes preconceptions about trials and explores where freedom of expression and the defendant’s right to due process conflict, seeking ways to achieve harmony.
Most media coverage of criminal cases relies on information obtained from investigative agencies and tends to focus on the investigative phase before indictment. Consequently, such crime-related reporting risks implanting a presumption of guilt in judges or jurors who must assess the facts of the crime with an open mind. In light of the constitutional principle of due process, this risks infringing upon the defendant’s right to a fair criminal trial, raising the necessity for certain restrictions. Empirical studies indeed exist showing that media reports on a suspect’s confession, prior convictions, or polygraph test results can significantly influence a guilty verdict. However, the counterargument that restricting reporting infringes upon the constitutionally guaranteed freedom of expression is also substantial.
In the Irvin case, the U.S. Supreme Court ruled that if it is proven that excessively biased media coverage treating the suspect as guilty formed a preconception that actually influenced the trial, the conviction must be overturned even if the judge or jury is convinced of the defendant’s guilt. This case is regarded as establishing the doctrine of ‘actual prejudice’. Subsequently, in the Rido case, the court advanced the doctrine of “general prejudice,” holding that if it is generally recognized that the content or manner of reporting could cause prejudice, a guilty verdict can be overturned on the grounds of a violation of due process, without requiring proof that individual jurors actually held such prejudice. Furthermore, in the Shepard case, while overturning a guilty verdict, the court introduced the perspective of ‘preventing prejudice.’ It illustrated various measures, such as excluding prejudiced candidates through detailed questioning during jury selection, isolating jurors or witnesses, and postponing trials or changing jurisdictions.
However, in the Nebraska Press Association case, where the Press Association appealed to the Supreme Court against a court-issued ‘pretrial gag order’ against the press, the Court ruled that employing the most powerful preventive measure when the risk of prejudice is not clear is unconstitutional. Through this series of precedents, the United States began seeking reasonable ways to balance freedom of the press with fair criminal proceedings while restricting crime reporting. Consequently, alongside the various measures proposed in the Shepard case, measures such as sealing criminal trials and prohibiting parties to criminal proceedings from providing information to the press were implemented. However, skepticism persists regarding the effectiveness of these prejudgment prevention measures, and concerns about excessive restrictions on freedom of expression and the public’s right to know remain. Consequently, these measures are applied very restrictively.
Furthermore, it is not necessarily true that freedom of the press and fair trials are inherently conflicting; there is also the perspective that respecting the defendant’s freedom of expression can actually contribute to a fair trial. This perspective reinterprets the significance of the Nebraska Press Association case ruling, arguing that defense counsel must actively convey the defendant’s position to the media to prevent one-sided reporting bias. This is necessary to counter the structure where crime reporting based solely on information obtained from investigative agencies leads to presuming the defendant’s guilt. It is pointed out that it is inappropriate to restrict defense counsel from speaking on behalf of the defendant regarding the case, as this generally carries less risk of violating due process than in the case of crime reporting. Conversely, criticism is raised that media reports based on information from investigative agencies, despite carrying a high risk of forming prejudgment, receive excessive constitutional protection.
Both the U.S. and Korean Constitutions guarantee the right to counsel, which includes the right to receive substantive assistance from counsel. This substantive assistance includes proactive defense activities conducted outside the courtroom. Therefore, opportunities for defendants to provide favorable information to the media or exercise their right of rebuttal in criminal proceedings should not be restricted. Instead, the media must be guaranteed the ability to report in a manner that affords equal opportunity not only to the prosecution but also to the defense. To achieve this, Korea, like the United States, needs to pursue measures such as establishing voluntary agreements among courts, investigative agencies, bar associations, and news organizations.
