ABSTRACT
Highly publicized trials are unsightly things that nobody seems to like very much. Judges make demeaning comments about “letting the jackals in” (a phrase attributed to Lance Ito following his decision to televise the Simpson trial), defense attorneys howl ceaselessly about how their clients are being convicted in the press, and even the poor Marcia Clarks of the world seem completely exhausted by the end of it all. This ugliness leads to the widespread suspicion that something must be wrong with a process this unbecoming, and this visceral negative reaction to the circus on the part of academics and legal scholars led, as much as anything, to the Sheppard decision. But First Amendment issues are tricky precisely because the speech most in need of protection is often the speech that most people least want to hear, and the unpleasantness of the discourse usually has to be sharply distinguished from its value or harm. There is much more uproar about the process than there is hard evidence that pretrial publicity actually puts defendants in an unfair position. This chapter sorts through that evidence in an attempt to summarize what we know about pretrial publicity at present and to answer the first major question of this book: Is there a pretrial publicity effect at all? There are more detailed questions to pursue, of course, and it is easy to imagine that the important question isn’t whether there is a pretrial publicity effect, but when and how it might emerge. These sexier questions are deferred until chapter 3, and in the interest of putting carts and horses in the correct order this chapter ponders whether there is a pretrial publicity effect at all. As it turns out, the answer to the question is elusive enough to justify a thorough search.
