Free Press & Fair Trial

A grisly crime, angry citizens, pressured police--such are the ingredients that spur , "trial by newspaper," the prejudicial reporting that often all but guarantees a despised defendant's conviction. British courts have long curbed the problem by holding errant newspapers in contempt. The U.S. Supreme Court, on the other hand, must consider the First Amendment right of a free press; it has repeatedly voided convictions for contempt by publication. And in the process it has left unresolved the competing interests of the press and the defendant on trial.

In reversing Dr. Sam Sheppard's murder conviction last spring, however, the Supreme Court suggested that the answer is for the bar and the police to button their own lips--thus silencing the key sources of prejudicial news without curbing freedom of the press. Last week a long-awaited set of specifics for carrying out that proposal was issued by the American Bar Association's ten-member advisory committee on fair trial and free press, a distinguished body of lawyers and judges headed by Justice Paul C. Reardon of the Massachusetts Supreme Judicial Court.

Significant Silence. In a 226-page report based on a study of crime reporting in cities from Newark to San Francisco, the committee concludes that the "preponderance of potentially prejudicial material" emanates from lawyers and law-enforcement agencies between arrest and trial. Wherever police and prosecutors have stopped talking, there has been a "significant decline" in overblown news stories--without any impairment of the vital role of the press in exposing crime and prodding lax law enforcement.

Convinced that there "need be no in compatibility" between a free press and fair trial, the committee asks all American courts to adopt new rules forbidding police, prosecutors, defense lawyers and court employees to release such potentially damaging information as:

> The accused's criminal record, reputation or character.

> The results of lie-detector tests, or a defendant's refusal to take them.

> The identity, testimony or credibility of prospective witnesses.

> The possibility of a guilty plea or bargaining for a lesser charge.

Neither police nor lawyers nor court employees would be allowed to publicize any opinions on the merits of the case. Police would also be forbidden to pose an arrested person for news photographs; the accused could not be interviewed unless he himself so requested in writing. To be sure, these pretrial rules would cut off crime reporters from their main sources, but diligent newsmen would still be free to dig up whatever they could find on their own.

Cool on Contempt. Police, prosecutors and other members of the legal branch who violated the rules would be subject to contempt proceedings before whatever court was handling the case. While a jury trial is in progress, urged the committee, the court should also hold in contempt any person who makes an out-of-court public statement that is "reasonably calculated to affect the outcome of the trial and seriously threatens to have such an effect."

Beyond such guidelines, the committee is flatly against "expanded use of the contempt power against the news media or the enactment of statutory restrictions." For one thing, news media have recently shown "impressive" restraint. For another, the Sheppard decision clearly suggests that trial judges can and should combat inflammatory reporting by many other devices--holding pretrial hearings in private, granting continuances and changes of venue, selecting jurors from distant localities, sequestering jurors to make sure that they do not read the newspapers and readily ordering mistrials when they do.

The committee's recommendations have yet to be adopted by the A.B.A.'s house of delegates or fully accepted by the courts. As for the press, the American Society of Newspaper Editors regards the committee report as partly "excellent," but fears that its adoption might invite "secret law enforcement," resulting in "a partially and improperly informed public at the time of serious crime." To that extent, declares the A.S.N.E., the recommendations are "in conflict with the Constitution."

* The existence or contents of any admission or confession.

This file is automatically generated by a robot program, so reader's discretion is required.