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NCJRS Abstract

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NCJ Number: 76376 Find in a Library
Title: Gag Orders, Exclusionary Orders, and Protective Orders Expanding the Use of Preventive Remedies To Safeguard a Criminal Defendant's Right to a Fair Trial
Journal: American University Law Review  Volume:29  Issue:3  Dated:(Spring 1980)  Pages:439-484
Author(s): D Apfel
Date Published: 1980
Page Count: 46
Format: Article
Language: English
Country: United States of America
Annotation: Guidance is provided for defense attorneys in guarding their clients against adverse pretrial publicity that could undermine the clients' right to a fair trial.
Abstract: Defense attorneys must assume a more active role in protecting their clients from publicity before and during trial. Traditional measures to cure the effects of prejudicial publicity continue to find favor in the courts. Continuance, change of venue, voir dire, jury instructions, and sequestration are still important means for protecting the accused. Such measures provide adequate relief when the publicity has been localized or the reporting has been infrequent and objective. When a case has attracted widespread, adverse news coverage, however, preventive measures will be necessary to avoid juror prejudice. The most effective preventive measure is a gag order, which restrains the media from publishing stories about the case. To obtain a gag order, the inherent-prejudice standard of 'Nebraska Press' must be satisfied. Where this stringent requirement cannot be met, the use of exclusionary and protective orders should be explored. In 'Gannett,' the Supreme Court defended the use of exclusionary orders to close pretrial hearings to the general public. Recourse to such a closure order may be essential if the defense intends to move to suppress a confession or other evidence. Because the attorney will want to prevent the media from obtaining this prejudicial information from other sources, an exclusionary order should be linked to a protective order. When seeking preventive relief, a hearing by the trial court will often be required. Rights of free press, free speech, fair trial, and public trial must be dealt with in these hearings, and the defense attorney must be prepared to argue that the right to a fair trial is paramount. Footnotes are provided. (Author abstract modified)
Index Term(s): Defense; Fair trial-free press; Judicial decisions; Jury selection; Media coverage; Pretrial publicity
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