[*PG901]THE ANONYMOUS ACCUSED: PROTECTING DEFENDANTS’ RIGHTS
IN HIGH-PROFILE CRIMINAL CASES
Abstract: The public’s interest in high-profile crimes and the media’s coverage of high-profile trials have significantly increased over the past fifty years, raising significant concerns about a high-profile defendant’s right to a fair trial. This Note examines how pretrial publicity can affect the fairness of a high-profile criminal case and how courts have attempted to protect a high-profile defendant’s Sixth Amendment right to a fair trial while still assuring the media’s First Amendment right to freedom of the press. Specifically, the Note discusses and analyzes court-made remedies as well as new remedies scholars have proposed to protect a high-profile criminal defendant’s right to a fair trial. Finding such remedies ineffective, the Note considers whether defendant anonymity, which courts can apply in civil trials, could be an effective protection of a high-profile defendant’s right to a fair trial.
In 1941, in Bridges v. California, United States Supreme Court Justice Hugo Black stated, “Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”1 In the last decade, it seems as though Justice Black’s fear that legal battles would be waged in the media has come to fruition.2 The public’s interest in high-profile criminal cases has grown dramatically over the last decade, increasing the difficulty of finding impartial decisionmakers.3 Because such a highly publicized atmosphere surrounds potential jurors, these triers of fact may be influenced as to the guilt or innocence of a high-profile defendant before the trial even begins.4
Without question, high-profile criminal cases receive a great amount of attention from the media.5 Over the past ten years, the media has brought many cases into our living rooms through exten[*PG902]sive television and print coverage of high-profile criminal trials.6 There are basically three types of high-profile cases: (1) cases with sexual or sordid facts that appeal to people’s voyeuristic tendencies, even though the murderer or victims are most likely non-celebrities;7 (2) cases in which the crime is particularly heinous;8 and (3) cases in which the defendants are national celebrities or otherwise well-known throughout their local area, but the crime itself is not sordid or heinous enough to draw the attention of the media without the celebrity status of the defendant.9 In each of these types of cases, a trial judge has the obligation to assure that the defendants receive a fair trial in which an impartial jury determines their guilt or innocence.10
Depending on the story the media relays to the public, the intense media coverage surrounding high-profile criminal cases can either destroy a defendant’s chances for a fair trial11 or ultimately benefit the defendant.12 Pretrial publicity work against a high-profile defendant because the media coverage can often negatively prejudices the potential pool of jurors against a defendant.13 Because pre[*PG903]trial publicity can have disastrous effects on the fairness of high-profile criminal cases, courts have struggled over the past fifty years to fashion remedies that protect defendants in high-profile cases from being prematurely convicted by a jury due to negative media coverage.14
To make it more likely that an impartial jury will try a defendant, courts are armed with an arsenal of devices designed to minimize the prejudicial effects caused by excessive media coverage in a high-profile case.15 These devices include: gag orders on trial participants, prior restraints on the media, voir dire, special jury instructions, sequestration, postponement, and change of venue.16 Although courts still employ these techniques, in many cases, the use of one or more of them has not proven sufficient to protect an accused’s right to a fair trial.17
This Note proposes a new solution to the problem of protecting the high-profile criminal defendant’s Sixth Amendment right to a fair trial in a media-dominated atmosphere.18 In civil trials, courts may keep a plaintiff’s identity anonymous throughout the trial even though the Federal Rules of Civil Procedure require plaintiffs to disclose their names in the instrument they file to commence a lawsuit.19 Courts will allow plaintiffs to depart from this “procedural custom fraught with constitutional overtones” to accommodate a plaintiff’s asserted need to proceed anonymously through the use of a fictitious name.20 This Note argues that allowing a high-profile criminal defendant to proceed anonymously can safeguard a the defendant’s right to a fair trial both by shielding potential jurors from prejudicial pretrial publicity about the particular defendant and by preventing any juror [*PG904]exposure to pretrial publicity from biasing his or her decision-making ability during the trial.21
Section I of this Note explores remedies trial courts use to minimize the prejudicial impacts of pretrial publicity on a high-profile defendant’s right to a fair trial.22 Section II discusses new remedies scholars have proposed as possible solutions to the problem of extensive pretrial publicity in high-profile criminal cases.23 This section explains how the proposed solutions would operate.24 Section III focuses on party anonymity in civil trials and what factors courts look at to decide if a case is one in which party anonymity is necessary.25 Section IV explains the ineffectiveness of the remedies courts currently utilize to protect a high-profile defendant’s rights in a media-dominated atmosphere.26 Section V analyzes the effectiveness of new solutions scholars have proposed to remedy the problem of pretrial publicity in high-profile criminal cases.27 Finally, Section VI argues by analogy that party anonymity, as it is used in civil trials, would effectively protect a high-profile criminal defendant’s Sixth Amendment right to a fair trial despite any pretrial publicity that might have occurred.28
When fashioning a remedy to protect a high-profile defendant’s right to a fair trial, a trial judge must balance the accused’s Sixth Amendment right to a fair trial with the media’s First Amendment right to freedom of the press.29 Indeed, a high-profile defendant’s [*PG905]Sixth Amendment right to a fair trial often conflicts with the media’s First Amendment right of freedom of the press.30 Trial by an unbiased jury is one of the rights the Sixth Amendment guarantees defendants.31 Chief Justice John Marshall wrote, “[T]he great value of the trial by jury certainly consists in its fairness and impartiality. Those who most prize the institution, prize it because it furnishes a tribunal which may be expected to be uninfluenced by an undue bias of mind.”32 In both state and federal courts, permitting a biased jury to decide a criminal defendant’s fate fundamentally denies the defendant of due process of law.33
A jury of one’s peers has long been recognized as key to protecting defendants from arbitrary state action.34 Defining what constitutes an impartial jury, however, has plagued courts for quite some time.35 The presence of the mass media has only intensified the problem.36 One commentator notes, “[A]s criminal procedure and the rules of evidence became more formalized, it became important to find jurors sufficiently unbiased and removed from the facts to decide the case based solely on the evidence presented in court, and not by extra-judicial knowledge.”37 Indeed, extensive pretrial publicity makes it very difficult to find jurors who are impartial enough not to decide the case based on information obtained outside the courtroom.38 Chief Justice Marshall explains:
Such a person [a juror possessing a fixed opinion about the guilt of the accused] may believe that he will be regulated by testimony, but the law suspects him, and certainly not without reason. He will listen with more favor to that testimony [*PG906]which confirms, than to that which will change his opinion; it is not to be expected that he will weigh evidence or argument as fairly as a man whose judgment is not made up in the case.39
Because high-profile cases generate such extensive pretrial publicity, judges must employ certain devices that make it more likely that the impaneled jury is an impartial one.40
High-profile criminal cases receive national media attention during the investigatory and pretrial proceeding and typically involve the following types of cases: those that involve sordid facts but lack a celebrity defendant or victim; those in which the nature of the crime is heinous; and those that involve a famous defendant or victim.41 The national media coverage each of these types of cases receives increases the difficulty of finding impartial decisionmakers.42 Thus, courts have employed the remedies described below to decrease the negative effects pretrial publicity has on the fairness of high-profile criminal cases.43
A court may employ a gag order to restrain trial participants from making extrajudicial statements when there is a reasonable likelihood that prejudicial publicity may prevent a fair trial.44 By issuing a gag [*PG907]order, a trial court may prohibit lawyers, witnesses, jurors, court personnel, and others directly involved with the trial from making any harmful extrajudicial statements outside the courtroom setting.45 In 1966, in Sheppard v. Maxwell, the United States Supreme Court stated that the trial court should have proscribed extrajudicial statements by trial participants due to the intense media scrutiny surrounding the case.46 There, Dr. Sam Sheppard, accused of murdering his pregnant wife, was subject to extensive media scrutiny from the beginning of the ordeal.47 First, the media reported Sheppard’s refusal to take a lie detector test.48 In addition, the local coroner questioned Sheppard in the presence of television, radio, and newspaper reporters, as well as several hundred spectators.49 Moreover, the police arrested Sheppard and charged him with murder just hours after a front-page editorial appeared asking, “Why Isn’t Sam Sheppard in Jail?”50 This intense media scrutiny continued throughout the trial, exposing potential jurors to the coverage.51 The Court held that the trial court’s failure to protect Sheppard from the prejudicial publicity denied him his right to a fair trial in violation of due process.52 Furthermore, the Court asserted that the trial court should have controlled the release of information to the media.53 The Court stated that it would permit a trial judge to issue a gag order to prevent trial participants from frustrating the proper functioning of court proceedings in circumstances where pretrial publicity would threaten a defendant’s constitutional right to a fair trial.54
A similar, yet more drastic, device available to courts is a prior restraint, which prohibits the media from publishing any information that threatens the defendant’s right to a fair trial.55 Although arguably the most powerful device in preventing the rapid spread of prejudicial publicity, such orders come with a high presumption of invalidity under the First Amendment and therefore remain highly ineffective.56 The United States Supreme Court has stated clearly that prior restraints are not permissible in open trial proceedings.57
In 1976, in Nebraska Press Ass’n v. Stuart, the United States Supreme Court set out a three-part balancing test for a trial court to use in analyzing the constitutionality of allowing a prior restraint in a criminal trial.58 In determining whether prior restraints are a viable option, courts must consider the following: (1) “the nature and extent of pretrial news coverage;” (2) “whether other measures would likely mitigate the effects of unrestrained pretrial publicity;” and (3) “how effectively a restraining order would operate to prevent the threatened danger.”59 Trial courts may not utilize prior restraints to protect a defendant’s rights if other, less restrictive alternatives are available.60
In Nebraska Press, the defendant was accused of killing almost the entire Kellie family, including the grandfather, the grandmother, their son, and three minor grandchildren.61 Once news media received word of the crime, a local radio station immediately broadcasted a police bulletin warning of an armed sniper in the area.62 The news media urged everyone to stay indoors, and several businesses shut down.63 By the next day, news of the crime had spread all over town.64 The police found the defendant lurking behind the Kellie residence the day after the murders; the court arraigned him that day.65 The day after his arraignment, the story of the murders and the defendant’s arrest for the crime dominated the news on the radio, television, and [*PG909]in the print media.66 The press revealed that the defendant had admitted the murder to his parents and confessed to the murders to the police.67 Widespread public speculation regarding the motive for the crime and the defendant’s mental state filled the small community.68
In the factual circumstances outlined above, the Nebraska Press Court did not uphold the prior restraint ordered by the trial judge.69 The Court did find that the trial judge was “justified in concluding that there would be intense and pervasive pretrial publicity” and was acting reasonably to believe “that publicity might impair the defendant’s right to a fair trial.”70 Nevertheless, the Court did not uphold the prior restraint because the trial judge did not consider other alternatives less threatening to First Amendment rights.71 The Court also did not allow the prior restraint because the defense did not meet the heavy burden of demonstrating that, without prior restraints, the defendant would not receive a fair trial.72 For the majority, Chief Justice Warren Burger asserted, “It is not clear that further publicity, unchecked, would so distort the views of potential jurors that . . . [they could not render] a just verdict exclusively on the evidence presented in open court.”73 Because of the tight restrictions on the use of prior restraints, their use as a remedy to prejudicial pretrial publicity is severely constrained.74
Earlier cases dealing with prior restraints on the media were limited to print and press media.75 In recent years, however, trial coverage has expanded to include television coverage of high-profile criminal trials.76 The United States Supreme Court has not directly determined whether banning television cameras in the courtroom is an unconstitutional prior restraint.77 In 1981, in Chandler v. Florida, the United States Supreme Court held that states are free to permit electronic media to cover a trial and doing so does not, by itself, deny a defendant’s right to a fair trial.78 An exception to this rule states, [*PG910]however, that if a defendant can show that “media coverage of his case—be it printed or broadcast—compromised the ability of the particular jury that heard the case to adjudicate fairly,”79 then the trial judge may remove the television cameras.80 To date, states have the authority to determine whether to permit television coverage in the courtroom; however, television coverage is not typically allowed in federal courtrooms.81
Another remedy courts may fashion to effectively balance the interests of high-profile defendants and the media is voir dire.82 Appellate courts often give great weight to thorough voir dire procedures conducted by trial courts.83 Voir dire typically involves the routine questioning of potential jurors to gauge their competence and potential bias.84 Voir dire questioning includes inquiries about a potential juror’s occupation, family, education, prior convictions, and knowledge of the trial.85 Because the voir dire process involves an examination designed to determine the extent of jurors’ knowledge and prejudices about the case, a trial court can detect any potential juror bias before the trial to secure an impartial jury.86
In 1991, in Mu’Min v. Virginia, the United States Supreme Court established the current standard for detecting potential juror bias through voir dire.87 For inquiries about the amount and content of juror exposure to pretrial publicity to be considered a constitutional requirement under the Sixth Amendment, a high-profile criminal defendant must show that a lack of such questioning would make the [*PG911]trial fundamentally unfair.88 The Court also stated that a trial judge could sufficiently protect a high-profile defendant’s rights by asking potential jurors whether they have formed opinions contradicting the pretrial publicity.89 Unless the adverse publicity and media attention justify a presumption of prejudice, a court should believe a potential juror’s statements about his or her possible biases.90 In sum, a defendant’s questioning of a potential juror about the extent of his or her knowledge of the case is an entitlement to know whether a juror, based on his or her own assessment, can remain impartial despite previously obtained information.91
Courts can also give special jury instructions to decrease the prejudicial effects of excessive media coverage on a trial.92 In high-profile trials, judges often emphasize the jurors’ duty to remain impartial during instructions to the jury concerning the law and facts of the case.93 At times, jury instructions can correct for prejudicial information potential jurors receive prior to sequestration.94 In 1972, in People v. Sirhan, the Supreme Court of California reviewed the defendant’s claim that he was denied his right to an impartial jury, which he based on the fact that after jury selection but before sequestration, the Los Angeles Times reported a severely prejudicial leak about the defendant’s intentions to accept a plea bargain to avoid the death penalty.95 The trial judge questioned the impaneled jurors about their knowledge of the plea bargain and admonished them to make a decision based on knowledge gained from the courtroom and not the press.96 Indeed, this admonition is what ultimately saved the plea bar[*PG912]gain and avoided a mistrial.97 In instances such as these, jury instructions can be crucial in maintaining the fairness of proceedings and in preventing the possibility of a mistrial if the media reports prejudicial information prior to jury sequestration.98 Due to the nominal cost involved with jury instructions, they are useful in certain situations.99
Jury sequestration is another device available to courts to protect a defendant’s right to a fair trial.100 By restricting the jury’s access to extrajudicial information, a court tries to ensure that jurors will reach a verdict based solely on the evidence presented at trial.101 In 1966, in Sheppard, the United States Supreme Court criticized the trial judge for not taking appropriate steps to protect the high-profile defendant’s right to a fair trial.102 The Court suggested that the judge should have sequestered the jury to keep media publicity about the trial from reaching the impaneled jurors.103
In 1976, in the People v. Manson (the Tate-LaBianca murder case), the California Court of Appeal reviewed the trial judge’s decision to sequester the jury, which turned out to be a key move in ensuring the jurors’ impartiality.104 As a result of the sequestration, the jurors were protected from both the extensive procedural arguments in court that might have influenced their attitudes toward the defendants and the widespread extrajudicial discussion of the case by the trial participants during the proceedings.105 One commentator notes, “This [extrajudicial] discussion and the wide coverage of the trial continued to reinforce the public views of the predetermined guilt of the defendants.”106 Despite the benefits of sequestration, it is only a viable [*PG913]option in cases in which the potential for prejudicing a defendant’s right to a fair trial outweighs the exorbitant financial and social costs often associated with sequestration.107 To avoid imposing unnecessary burdens on both taxpayers and jurors, a rational court would implement sequestration as a remedy only if the benefits to the defendant of having a sequestered jury outweighed any potential costs.108
In Sheppard, the United States Supreme Court stated that postponement is an action that a trial judge can take to guarantee an impartial jury because it delays the trial until the threat of prejudicial pretrial publicity abates or dies out.109 The assumption behind postponement is that public attention surrounding a case will actually fade over time.110 Moreover, trial courts assume that the lapse of time between the appearance of prejudicial news and the trial not only will diminish potential jurors’ ability to remember details of a case heard before the trial but also will allow jurors to set aside biases formed before the beginning of the trial.111
Trial courts can grant a change of venue to another locale where the publicity surrounding a case is not as widespread.112 Moving a trial from a locale where the publicity is widespread to a region where publicity is not as extensive results in finding a pool of potential jurors who have not had much exposure to pretrial media coverage and who have the ability to render a fair and impartial verdict.113
[*PG914] In 1961, in Irvin v. Dowd, the United States Supreme Court, for the very first time, overturned a conviction based solely on pretrial publicity.114 There, an Indiana trial court granted defendant’s motion to change the venue to an adjoining county in order to find jurors who had not been exposed to media reports about the case.115 In Irvin, intense media coverage surrounded six murders committed in a rural community.116 After the police arrested the defendant, the prosecutor issued press releases stating that Irvin had confessed to all of the murders as well as twenty-four burglaries.117 Before the defendant’s trial, newspapers reaching almost all of the residences in the court’s county published numerous articles about the case; moreover, local radio and television stations also covered the case extensively.118 The publicity included information about the defendant’s criminal history and murder confessions.119 Even with the venue change, almost ninety percent of the prospective jurors questioned during voir dire had formed some opinion as to the defendant’s guilt before the trial even began.120 Because the pretrial publicity was so extensive and widespread, the Court in Irvin found the trial flawed despite the change in venue.121 Thus, in high-profile cases where media involvement is overly excessive, a venue change will not always produce a jury entirely unaware of the issues surrounding the case.122
As discussed in Section I, courts have the option of employing several devices to prevent pretrial publicity from interfering with a defendant’s right to a fair trial.123 Because these devices have proven unsuccessful in certain instances, scholars have attempted to craft solutions that would more effectively protect a high-profile defendant’s rights to a fair trial.124 Although alternatives have been suggested, it is [*PG915]uncertain whether they can address effectively the fairness concerns at issue in high-profile cases.125
Because the arsenal of techniques described above are ineffective when applied in high-profile cases, Laurie Nicole Robinson proposes a solution that she believes would help “balance the scales of justice for high-profile defendants.”126 This solution involves the establishment of special high-profile courts to hear only high-profile cases.127 A high-profile criminal court would essentially take high-profile criminal cases out of the hands of potentially biased jurors and place them into the hands of judges specially trained to deal with high-profile cases.128
Robinson asserts that judges selected to preside over high-profile criminal cases should be not only neutral and experienced, but also specially trained.129 To guarantee high-quality judges, Robinson proposes that state bar associations, which are more familiar with judges’ past performance and experience, nominate judges to serve on high-profile courts.130 Robinson contends that because judges who serve on a high-profile court may be scrutinized or swayed by the media and public opinion, those judges should be appointed for life.131 Judges considered for a high-profile court should have a minimum of five years’ experience in the area of criminal law by serving as a prosecutor, criminal defense lawyer, or judge.132 Candidates for a high-profile court should also have previous experience adjudicating high-profile cases.133 Robinson’s goal in requiring high-profile judges to have experience in these cases is to ensure that those judges can maintain control in the courtroom in the face of the media.134 Also, this may [*PG916]decrease the likelihood that those judges will be influenced by media scrutiny, public opinion, or the defendant’s celebrity status.135
Top officials of the state court system would be responsible for selecting the judge that would adjudicate a particular high-profile case.136 In making this decision, the officials must determine that the selected judge has no potential conflicts.137 Furthermore, high-profile judges must not be influenced by pretrial publicity; the officials of the state court system would make certain of this by interviewing judges one-on-one or forcing judges to complete questionnaires.138
Robinson also recommends that all high-profile judges participate in a training program geared solely toward the practice of adjudicating high-profile cases.139 First, judges should receive training in trial procedure; this would require participation in a series of mock trials.140 These mock trials would be designed to address issues such as determining witness credibility, asking questions to develop facts, and resolving conflicts in evidence.141 Second, Robinson recommends that high-profile judges receive training in the area of media management.142 This training would encompass, among other things, methods that would enhance judges’ ability to communicate with the media.143 Because high-profile judges will have to sentence convicted high-profile defendants, Robinson thirdly suggests that judges receive training on uniformity in sentencing to ensure the consistency of punishment in high-profile cases with that of similar non-high-profile criminal adjudications.144
Robinson further contends that a defendant’s entitlement to a jury trial should be eliminated in high-profile cases involving petty offenses.145 Instead, a high-profile defendant would have his or her case heard by a specially trained high-profile judge.146 Robinson sug[*PG917]gests that a judge would have the ability to adjudicate the case more fairly than a jury because the status of the defendant likely would have less influence on a judge.147 This proposal is constitutionally feasible because the United States Supreme Court has held that crimes categorized as “petty offenses” do not implicate a defendant’s Sixth Amendment right to a jury trial.148
Robinson also strongly recommends that when high-profile defendants are charged with more serious offenses, they should be given a unilateral right to have their cases heard by a high-profile judge.149 This right is necessary because, due to pretrial publicity and excessive media coverage during the trial, high-profile defendants are sometimes held to a higher standard in the criminal justice system.150 Moreover, high-profile cases tend to reverse the roles of the defense and prosecution because the pretrial publicity tends to benefit the prosecution more than the defense.151 In such cases, the defendant is normally forced to prove his or her innocence, rather than the prosecution having to prove the defendant’s guilt, because jurors often predetermine a defendant’s guilt before the trial.152 Because the defendant in a high-profile case will most likely face a biased jury due to extensive pretrial publicity, the defendant should have the right to have his or her case decided by a neutral factfinder so that he or she can obtain a fair trial.153
Charles H. Whitebread and Darrell W. Contreras, Professors of Law at the University of Southern California Law School, believe that the best solution to effectively eliminate pretrial prejudice in high-profile cases is the so-called Sheppard-Mu’Min remedy because it “strikes the proper balance between the defendant’s interest in a fair [*PG918]trial and the media’s interest in informing the public.”154 Using the Sheppard-Mu’Min remedy, trial courts impose a gag order on trial participants as soon as the trial proceedings commence and fashion voir dire according to the standard enumerated in Mu’Min v. Virginia.155
The first part of the proposed Sheppard-Mu’Min remedy involves imposing a gag order on trial participants.156 Whitebread and Contreras assert that, in high-profile criminal cases, both sides have an incentive to address the public via the media and circulate information that will result in a court victory.157 Due to these interests, a trial court should impose a gag order restricting the communications of the trial participants immediately after proceedings commence.158 In effect, this gag order would forbid all parties involved in the case from discussing any aspect of the case with the media.159 Also, a gag order would not violate freedom of the press because courts have not inter[*PG919]preted the First Amendment to grant the press a right of free access to trial participants.160 If the press publishes prejudicial stories, a trial court then can warn those reporters who wrote or broadcasted those stories of “the impropriety of publishing material not introduced in the proceedings.”161
Once a trial court has imposed a gag order on trial participants, Whitebread and Contreras assert that the trial court would then conduct voir dire—the second and final element of the Sheppard-Mu’Min remedy.162 Whitebread and Contreras stress that a completely untainted jury is not constitutionally required and thus should not be a court’s goal.163 Due to the publicity surrounding a high-profile case, there are few people who have no knowledge of, or have yet to form an opinion about, the case.164 Therefore, the Mu’Min voir dire standards seek jurors who could render an impartial verdict despite information obtained from the media.165 These standards speed up the voir dire process because they eliminate the need to tirelessly question potential jurors about their exposure to pretrial publicity.166 According to Whitebread and Contreras, even the most extensive voir dire could not uncover all of the hidden biases found in potential jurors.167 Instead of conducting a voir dire in the hopes of accomplishing the impossible, they suggest that society should trust that jurors will respond truthfully to the questions asked during voir dire and remain true to their oath of rendering a fair verdict based on the evidence presented at trial.168
Whitebread and Contreras also contend that the Mu’Min standards of voir dire would eliminate the need to sequester the jury.169 They argue that society should not concern itself with media reports jurors may hear if the judge allows them to return to their homes at the end of the court day.170 Judges should caution the jury, however, [*PG920]that any information they hear outside of the courtroom may indeed be wrong and is not part of the official trial proceedings.171 Moreover, judges should further remind jurors of their oath to render a verdict based only on the evidence presented in court.172 Society should then trust jurors to uphold their oath.173 Whitebread and Contreras believe that trust, as an alternative to sequestration, would not only increase the pool of potential jurors because sequestration would no longer exist, but also would eliminate the severe social burdens imposed on a sequestered jury in a high-profile case.174
Whitebread and Contreras present a few remedies that should abate attempts by the media to pressure jurors in high-profile cases.175 First, a trial court may issue a protective order establishing a buffer zone around a juror’s house.176 Buffer zones have been upheld as constitutional, and they provide a sufficient shield between the jurors and the potential harassers.177 Second, many states have jury tampering laws that prohibit people from corruptly attempting to influence juror decisions.178 They stress, however, that this remedy should be coupled with professional restraint exercised by the media.179 Whitebread and Contreras suggest that the press should direct some effort toward protecting the rights of a defendant to a fair trial by unbiased jurors.180
The two proposals outlined in Section II are aimed at protecting a high-profile defendant’s right to a fair trial in a media-dominated atmosphere.181 Robinson’s proposal involves the establishment of [*PG921]high-profile courts, whereas Whitebread and Contreras’ proposal involves the utilization of gag orders and a specialized type of voir dire.182 Both proposals go beyond the remedies courts already use to protect the fairness of high-profile trials;183 nevertheless, other new solutions are needed to adequately defend the rights of the accused. The solution this Note advocates includes permitting high-profile criminal defendants to proceed anonymously throughout their court proceedings.184 Although anonymity for defendants in criminal proceedings is a rather novel idea, courts have allowed plaintiffs in civil trials to proceed anonymously in certain circumstances for more than two decades.185
In civil trials, a plaintiff may keep his identity anonymous throughout the trial despite the Federal Rule of Civil Procedure that requires a plaintiff to disclose his or her name in the instrument commencing a lawsuit.186 Federal Rule of Civil Procedure 10(a) requires a complaint to “include the names of all the parties.”187 This requirement of disclosure “protects the public’s legitimate interest in knowing all of the facts involved” in the case.188 Public access to this information is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings.189 Nevertheless, courts will allow plaintiffs to depart from this “procedural custom fraught with constitutional overtones”190 to accommodate a plaintiff’s asserted need to proceed anonymously.191
The majority of cases appellate courts have examined regarding party anonymity have historically involved cases where personal privacy issues are the chief concerns.192 In fact, a number of decisions have pointed to abortions as the “paradigmatic example of the type of [*PG922]highly sensitive and personal matter that warrants a grant of anonymity.”193 In addition to abortion cases, courts have allowed party anonymity in non-abortion related lawsuits as well.194
According to the United States Court of Appeals for the Eleventh Circuit, in Roe v. Aware Woman Center for Choice, Inc., in 2001, “parties to a lawsuit must identify themselves in their respective pleadings.”195 Nevertheless, in 1981, in Doe v. Stegall, the United States Court of Appeals for the Fifth Circuit stated that “the public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself.”196 In Stegall, the plaintiffs (a mother who brought the suit on behalf of her two minor children) sought to enjoin routine daily religious observances in the county’s public schools.197 There, “[f]earing harassment and violence directed against the Doe family generally and the Doe children in particular should their names be publicly disclosed, the plaintiffs asked that they be permitted to proceed under fictitious names.”198 The court found that “party anonymity does not obstruct the public’s view of the issues” involved in a lawsuit or the court’s process of resolving the dispute.199 Moreover, the court stated that the fairness open proceedings protect is not lost when one party is involved in the lawsuit under a fictitious name.200
Despite the constitutional importance of openness of judicial proceedings, courts have established exceptions to the rule of disclosure to allow a plaintiff to a lawsuit to proceed anonymously.201 To de[*PG923]cide whether to allow a party to proceed anonymously, courts must determine whether the plaintiff has a substantial privacy right that outweighs the constitutional presumption of openness of judicial proceedings.202 In balancing privacy concerns with the presumption of openness in judicial proceedings, courts give considerable weight to certain factors common to anonymous party suits.203 These factors include the following: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution.204 The Fifth Circuit in Stegall stated that the enumerated factors are not a “rigid, three-step test for the propriety of party anonymity,” nor is one factor meant to be dispositive.205 Along with these specific factors, threats of violence generated by a case, the threat of hostile public reaction to a lawsuit, and the special status and vulnerability of the plaintiffs, when looked at in conjunction with the other three factors, can sometimes “tip the balance against the customary practice of judicial openness.”206 Underlying all three of the involved factors is whether a “plaintiff would be likely to suffer real and serious harm if she was not allowed to use a pseudonym.”207
Because anonymity is still the exception, the possibility of embarrassment resulting from being a named party to a lawsuit, standing alone, will not permit a party to proceed anonymously.208 Furthermore, the fact that a suit may “annoy the parties and subject them to possible criticism” is not enough to deprive the judge, the jury, and the public of the right to know the identity of the parties.209 Overall, trial judges must carefully review all circumstances of a case in determining whether a plaintiff’s privacy concerns outweigh the general presumption of openness of judicial proceedings.210
A gag order on trial participants, standing alone, will not adequately protect a high-profile criminal defendant’s right to a fair trial.211 Issuing gag orders without utilizing other devices is problematic because gag orders cannot constitutionally restrict the media’s ability to report everything it learns or gathers about the case before or during the trial.212 In addition, although gag orders restrict the trial participants’ ability to talk about the case and thus limit the media’s information sources,213 they are ineffective when utilized by themselves because they do not limit the underlying information to which the press has easy access.214 For example, gag orders do not restrict the identity of the accused; thus, even with a gag order, the press can conceivably learn of the defendant’s identity and then report information about the defendant’s role in the crime before the trial begins.215
When employed along with other effective remedies, however, a gag order can effectively decrease the amount of prejudicial pretrial publicity that reaches potential jurors.216 A gag order does not violate freedom of the press because courts have not construed the First Amendment as granting the press a right of free access to trial participants.217 If reporters publish prejudicial stories about a case, a trial [*PG925]court can notify them of the impropriety of publishing material not introduced in the proceedings.218
Overall, a “[r]estraint on trial participant speech is effective because, although not directly restraining the media, it severely limits their information sources.”219 With gag orders, “the judge can control the release of information to the press by police officers, witnesses, and the counsel for both sides.”220 Gag orders can decrease the amount of prejudicial pretrial publicity because the judge can order trial participants not to discuss such topics as the refusal of a defendant to submit to a lie detector test; the identity of prospective witnesses or their likely testimony; and any belief in the guilt or innocence of the accused.221
Despite the noble goals of voir dire, it generally is not an effective way of protecting a high-profile criminal defendant from damaging pretrial publicity.222 Voir dire, as it is currently used, tries to eliminate the impact of pretrial publicity by selecting jurors who have no knowledge about the case.223 It is virtually impossible in a high-profile case to find a juror with no knowledge about the case, considering the large amount of pretrial publicity.224 In fact, jurors in high-profile cases not impacted by pretrial news reports may be “so far removed from the mainstream of American life” that the community views will not be expressed in the courtroom.225 Voir dire may also locate poten[*PG926]tial jurors who have not yet formed an opinion about the case.226 Unfortunately, locating jurors who have not formed an opinion about a case that they have learned about through the press is difficult to achieve in a high-profile case because people naturally respond to events they see unfolding in the news.227 Moreover, by solely attempting to determine a juror’s exposure to the media, voir dire fails to determine the actual existence and degree of any bias engendered by such exposure.228 An extensive voir dire also typically involves substantial financial costs and thus has the result of burdening taxpayers.229
Although the goal of voir dire is to excuse tainted jurors, the possibility exists that some potential jurors will not admit their prejudice.230 Indeed, during a voir dire examination, jurors sometimes do not give accurate or honest responses.231 Chief Justice Marshall pointed out that a juror possessing a fixed opinion about the guilt of a defendant might claim to be able to render an impartial verdict, and indeed might be able to, but the law should not rely on those claims.232 Because jurors who claim in their voir dire examination that [*PG927]they can render an impartial verdict most likely will not be able to do so after having already formed an opinion about a high-profile case, an extensive voir dire examination, by itself, will not always result in an impartial jury.233
Special jury instructions are ineffective at decreasing the prejudicial effect of pretrial publicity because “it is impractical to believe that jurors disregard information that may be deeply imbedded in their minds.”234 In addition, jury instructions in high-profile criminal cases often do not serve to compel jurors to disregard an individual’s celebrity status because it is extremely difficult for jurors to think of a celebrity as a regular person.235
In a survey of approximately 500 judges, only 32.9 percent believed that jury instructions were “highly effective” in ensuring impartiality in the jury’s decision-making process.236 On the other hand, 40.5 percent found jury instructions to be “moderately effective” and 13.2 percent found them to be “ineffective.”237 From this data, one commentator suggests that “[a]pparently some judges are not sure [*PG928]that their instructions not to read or listen to news reports of the trial are always followed by members of the jury.”238 In addition, as to the effects of jury instructions, one judge surveyed commented, “A juror’s mind can no more be cleansed of information than a bell can be unrung.”239
Although sequestration seems like an excellent solution to protect a high-profile criminal defendant’s right to a fair trial on its face, this remedy has many deficiencies.240 Because of its high social and financial costs, sequestration is highly impractical in preventing media publicity from adversely affecting the required impartiality of the jury in a high-profile case.241 Indeed, sequestering a jury is ineffective at minimizing the effects of excessive media coverage on a high-profile criminal trial because sequestration comes too late in the process.242 By the time jurors are impaneled, most of them have already been swayed by pretrial media reports.243 Although sequestration protects the jury from the influence of media reports during the trial, it does not correct any pretrial prejudice.244 For example, one commentator points out that the Juan Corona murder case drew extensive media attention in the pretrial stage—the media constantly described the recovery of the bodies in detail, and Corona’s guilt had already been decided in the court of public opinion.245
Moreover, sequestration is “a major inconvenience for the impaneled jurors who may then prejudice the result in the trial by blaming the defendant for this disruption of their lives.”246 Indeed, defendants often do not exhibit characteristics that “make them seem worthy of a citizen’s sacrifice” of sequestration.247 In fact, sequestration is so unpopular with jurors that courts often withhold from jurors the identity of attorneys who move for it.248 The large amount of secu[*PG929]rity measures imposed on jurors also creates resentment among them.249
In addition, the financial costs of sequestering a jury are an enormous burden on the tax-paying community because high-profile trials typically continue for long periods of time.250 When a jury is sequestered, the monetary costs include room, board, and entertainment of the jurors; in a lengthy trial, these costs can be enormous.251 In regard to the social costs, sequestration may decrease the number of people willing to serve on juries because people do not want to be separated from their families and friends for any considerable amount of time.252 Furthermore, a lengthy sequestration may decrease the chances for a fair trial because jurors may rush through their deliberations to return to their everyday lives.253 Sequestration also means that persons of “professional status or business responsibility usually cannot give time to jury duty.”254 Because the benefits of sequestration are often heavily outweighed by the fiscal and social burdens associated with it, it is not an effective or efficient remedy available to courts.255
Despite its attractiveness as a remedy, postponement does not effectively diminish the effects of pretrial publicity on a high-profile criminal case.256 Potential jurors are not likely to forget everything they heard in the news before the original trial date merely because the trial is moved to a future time.257 Postponement is also ineffective [*PG930]because no guarantee exists that media interest in the case will fade over time.258 Even if media attention does fade, it may resurge once the trial eventually takes place.259 Postponement may also diminish the accuracy and reliability of a witness’s testimony because a person’s memory often fades over time.260 In addition, postponement inevitably results in a backlog of the docket in the case’s jurisdiction.261
Postponement of a trial may also negatively impact a high-profile defendant’s Sixth Amendment rights.262 In 1968, shortly after the Sheppard case, the Committee on the Operation of the Jury System in the United States Judicial Conference, composed of federal judges, issued a report stating that federal courts should make more use of the traditional methods of ensuring an impartial jury.263 Although the committee advocated the use of postponement, it noted that postponement often involves substantial complications, namely “prejudice to the right of a defendant to a speedy trial and the interest of the public in the prompt administration of justice.”264 Because of its adverse effects on the Sixth Amendment guarantee of a speedy trial, Judge Eric Younger asserts:
[C]ontinuances . . . [are] probably the most universally agreed-upon villain of the court administrative process, and one which, especially without the consent of the defendant, is expressly forbidden by statute in many states and, now in the federal system as well. The last measure which a legal system conscious of its image needs is to attempt to create fairness in its most celebrated cases by keeping them around for long periods of time.265
[*PG931]Whitebread and Contreras point out that the United States Supreme Court has not yet addressed whether postponement of a trial violates a defendant’s Sixth Amendment right to a speedy trial.266 Further, Whitebread and Contreras state that if a defendant moves for and is granted a continuance, it would seem unconscionable to permit the defendant to later succeed on a claim that the continuance violated his or her right to a speedy trial.267 Without a clear statement from the Court, a defendant’s request for a continuance may act as a waiver of the Sixth Amendment right to a speedy trial.268
Although moving a trial to a place where the publicity is not as great seems like an ideal way to impanel jurors that lack exposure to prejudicial pretrial publicity, the value of a venue change as a remedy has diminished due to technological advances.269 Because the trial is moved to a venue outside of the scope of publicity to locate unbiased jurors, this option is only available if the impact of a case is confined to a local area.270 Nonetheless, the current ability of the media to instantaneously reach a vast number of people with one telecast has decreased the chances of finding unbiased jurors in any alternate locale.271 In high-profile cases, this problem is exacerbated because [*PG932]those types of cases often receive nationwide media attention.272 Indeed, in particularly notorious cases, a venue change may be of little help because of inflamed passions surrounding the case: anything less than an indefinite delay may be inadequate.273 In those situations, pretrial publicity will eventually reach potential jurors in every location suitable for a venue change.274
Moreover, venue changes in federal court cases are extremely costly and highly inefficient.275 Under a 1990 federal victim’s rights law, the Justice Department must accommodate the needs of victims, including transportation, housing, and food throughout the course of the trial, thus making sequestration fiscally burdensome on the taxpayers.276 Indeed, many judges resist venue changes because of the expense.277 Judges also oppose venue changes because moving the trial to another location moves the expense of the trial to the host location.278
As Section IV demonstrates, traditional methods to prevent pretrial publicity from interfering with the defendant’s right to a fair trial are ineffective.279 Although scholars have suggested alternatives to the [*PG933]traditional methods, those alternatives also fail to effectively address the fairness concerns at issue here.280 As mentioned above, Robinson asserts that the creation of high-profile courts would help to correct the problems of excessive media coverage in high-profile cases.281 In evaluating the effectiveness of the establishment of high-profile courts in the future, the practical ramifications of actually implementing Robinson’s remedy are of the utmost concern.
Robinson’s proposal, if implemented, would result in several major problems. First, the creation of another court system and the training of judges would place financial burdens on both taxpayers and states.282 Training judges in the area of high-profile cases would also involve substantial monetary costs.283 Second, Robinson’s solution does not provide for a defendant to have a jury trial because, if a defendant chooses to have his case heard in a high-profile court, the case would be adjudicated by a specially trained judge rather than by a jury.284 Hence, if a defendant wanted to have his case heard by a jury, then he would have go to a regular court and face fairness problems.285 Another problem with her solution is that if judges must have experience in high-profile cases to receive an appointment to a high-profile court, it soon would be impossible to choose judges with high-profile experience to sit on the court if no one outside the high-profile system hears high-profile cases.286 Thus, at some future time, inexperienced judges would have to hear high-profile cases, which is exactly the problem Robinson wants to avoid by establishing these specialized courts.287 Yet another problem with Robinson’s proposal is that it would be financially and temporally difficult to set up a process whereby someone determines which cases should be classified as “high-profile” and thus be eligible for adjudication in a high-profile court.288 Most importantly, Robinson’s solution is not very helpful because it does not attempt to correct the problems inherent in the present court system: it merely attempts to ignore them.289
[*PG934] As stated previously, Whitebread and Contreras argue that the Sheppard-Mu’Min remedy strikes a proper balance between the defendant’s interest in a fair trial and the media’s interest in informing the public.290 Under the remedy, trial courts impose a gag order on trial participants and conduct voir dire according to the standards set in Mu’Min v. Virginia.291 Whitebread and Contreras’ proposed solution has the potential to effectively curb prejudicial publicity from interfering with a high-profile defendant’s right to a fair trial.292 With the Sheppard-Mu’Min remedy, Whitebread and Contreras acknowledge the impossibility of impaneling a perfect jury and attempt to decrease the harm associated with potential jurors’ exposure to prejudicial publicity.293 Unlike Robinson, Whitebread and Contreras suggest a remedy that not only keeps high-profile cases in the current criminal justice system but also eliminates the old remedies that have proven to be both ineffective and expensive.294
Although the Sheppard-Mu’Min solution has the potential for success, that remedy standing alone most likely will not adequately protect a high-profile criminal defendant’s right to a fair trial because pretrial publicity will inevitably still negatively influence some impaneled jurors despite gag orders on trial participants and the Mu’Min voir dire.295 First, gag orders are ineffective at preventing pretrial publicity from reaching potential jurors because, although they do limit some of the media’s information sources (namely, what trial participants tell the media), gag orders do not restrict any of the underlying information available to the press.296 Most importantly, gag orders are problematic because they do not, by themselves, keep the identity of the defendant hidden from the public. With the Mu’Min style of voir dire, too much trust is put into the jury rendering an impartial verdict despite being exposed to extensive pretrial publicity about the case.297 Just because jurors swear to decide a case based on the facts in front of them does not mean that they will automatically cast aside any opinion they may have formed about the guilt or innocence of the accused prior to the trial.298 As Justice Tom Clark stated:
[*PG935]The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. . . . No doubt each juror [is] sincere when he [says] that he [will] be fair and impartial . . . [but] such a statement of impartiality can be given little weight.299
Justice Felix Frankfurter similarly wrote, “How can fallible men and women reach a disinterested verdict based exclusively on what they heard in court when, before they entered the jury box, their minds were saturated by press and radio for months preceding by matter designed to establish the guilt of the accused.”300
Although the Sheppard-Mu’Min remedy has the potential to protect effectively a high-profile defendant’s rights if applied properly by trial courts,301 trial judges must do more than just impose gag orders and conduct voir dire in a different manner to rectify the pretrial publicity problem in high-profile criminal trials. The Sheppard-Mu’Min remedy alone will not correct the enormous impact that prejudicial pretrial publicity has on jurors in high-profile criminal cases.302 Thus, courts must take an extra step to ensure that any pretrial news reports about the case will not negatively influence potential jurors and any pretrial publicity that has made its way into jurors minds will not impact their decisionmaking.303 That necessary extra step involves allowing a high-profile criminal defendant to proceed anonymously throughout the court proceedings.304 A high-profile criminal defendant could move to proceed anonymously during the preliminary hearing, the stage when defendants typically request other measures [*PG936]such as venue changes, prior restraints, and gag orders.305 If an appellate court finds that a judge incorrectly denied a motion for anonymity, the only way for an appellate court to correct such an error is to remand the case for a new trial.306
One benefit in allowing a high-profile criminal defendant to proceed anonymously is that anonymity, unlike the gag orders in the Sheppard-Mu’Min remedy, can prevent prejudicial pretrial publicity about the defendant from negatively influencing potential jurors.307 If a judge agrees to conceal the defendant’s identity before jury selection, the negative impact of the media’s coverage on potential jurors will be severely limited because the defendant’s name will not be revealed in any court documents or in any public record.308 This means that the press will not have access to the defendant’s identity to subsequently use in pretrial news reports.309 Without the ability to report the high-profile defendant’s name in any pretrial news reports, the potential for media coverage to cause juror bias will decrease because the jury pool will most likely never learn the defendant’s name in connection with the case before the trial.310 In addition, the media [*PG937]will lack the ability to connect the high-profile defendant to any prejudicial information in the defendant’s background that the press could have found and reported had the court not permitted the defendant to proceed anonymously.311 Eliminating the possibility that the press will report prejudicial information about a high-profile criminal defendant’s background prior to the trial could significantly reduce the likelihood of impaneling a jury with preexisting opinions of the defendant’s guilt or innocence.312 Any reduction of the likelihood of impaneling a biased jury certainly increases the chances that a high-profile criminal defendant will receive a fair trial.313 If, after anonymity is granted, someone reveals the name of the defendant, judges have several remedies available to them. If disclosure happens before or during a trial, a judge could hold the person who revealed the defendant’s identity in contempt of court.314 If the defendant’s identity is revealed in the courtroom while the jurors are present, contempt is still an option, but a more appropriate remedy would be a mistrial, if the judge thought the violation serious enough to negatively impact the accused’s right to a fair trial.
Another benefit of allowing a high-profile criminal defendant to proceed anonymously is that, regardless of how the judge conducts voir dire, any pretrial publicity that influenced a potential juror prior to the point where the court grants anonymity will most likely not im[*PG938]pact the fairness of the trial.315 If a defendant’s identity is not revealed during the trial, a juror is probably not going to remember the defendant’s name in connection with negative information reported by the press just from the facts of the case.316 In cases that are high profile due to the defendant’s celebrity status, such as the O.J. Simpson case, allowing the defendant to proceed anonymously, by itself, will not protect the trial’s fairness because concealing a defendant’s name will not conceal a face.317 If a juror can recognize the defendant based on his appearance alone, then any biases he or she may have about the case will surface because the juror will have the ability to connect those preexisting biases upon seeing the defendant.318 In situations such as those, where a defendant is so recognizable that anonymity will not help him or her, the only way for the defendant to be totally [*PG939]protected is to waive his or her right to be present at the trial.319 If a highly recognizable celebrity defendant waives his or her right to be present at the trial and can proceed anonymously, the jurors will lack the ability to connect any early prejudicial media reports detailing the specific defendant’s background or declaring the particular defendant’s guilt or innocence with the case in front of them.320
Although anonymity for high-profile criminal defendants is a new idea, courts have permitted plaintiffs in civil trials to proceed anonymously in certain circumstances for more than two decades.321 The ultimate test for allowing a plaintiff in a civil trial to remain anonymous involves determining whether the plaintiff has a substantial privacy right that outweighs the “‘customary and constitutionally embedded presumption of openness in judicial proceedings.’”322 Certainly, a high-profile criminal defendant has an important constitutional right that needs protection by the courts—the Sixth Amendment right to a fair trial.323 To adequately protect a high-profile criminal defendant’s Sixth Amendment right to a fair trial, courts should permit a defendant to proceed anonymously throughout the judicial proceedings.324
Although the First Amendment guarantee of freedom of the press is implicated when a court decides to restrict public scrutiny of judicial proceedings, courts have allowed party anonymity in civil tri[*PG940]als despite this constitutional concern.325 The United States Court of Appeals for the Fifth Circuit has stated that the “public’s right to scrutinize public proceedings is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself.”326 The public’s right to scrutinize public proceedings is not entirely damaged with party anonymity because it does not obstruct the public’s view of the issues involved in a lawsuit or of the court’s process of resolving the dispute.327 In a high-profile criminal case, even if the trial court allows the concealment of the defendant’s identity, the public and the media can still attend the trial and look at the public record documenting the trial without impediment.328 Thus, with anonymity, both regular citizens and the press will have the ability to scrutinize the judicial process involved in the case, which is what the Fifth Circuit has said the First Amendment protects.329
In deciding whether to allow a party to proceed anonymously in a civil trial, courts balance the plaintiff’s substantial privacy right with the presumption of openness in judicial proceedings.330 To determine whether a plaintiff’s privacy right will outweigh the presumption of openness in judicial proceedings, the court looks at the following non-dispositive factors in the balancing test: a challenge to government activity; disclosure of information of the utmost intimacy; and the potential for admission of the plaintiff’s intention to engage in illegal conduct, thereby risking criminal conduct.331 In addition to these factors, threats of violence generated by a case, the threat of hostile public reaction to a lawsuit, and the “special status and vulnerability” of the plaintiffs can sometimes “tip the balance against the customary practice of judicial openness.”332
Without question, high-profile criminal defendants, like plaintiffs in civil trials, have substantial privacy rights that, at times, should outweigh the presumption of openness in judicial proceedings.333 In applying this balancing test in a high-profile criminal case, if a defendant is not allowed to proceed anonymously, the press will often [*PG941]decide to report background information about the defendant that is very intimate in nature.334 For example, reports about a high-profile criminal defendant’s juvenile record, past criminal behavior, sensitive medical information, or past sexual activity in relation to the case would certainly result in the disclosure of intimate information that a defendant would not want revealed to the entire public.335 Furthermore, it would not be uncommon for the public to have a hostile reaction to a high-profile criminal case, especially one in which the defendant is accused of a particularly heinous crime.336 It would also not be unlikely for a high-profile criminal defendant accused of an egregious crime to be threatened with violence from members of the public, outraged by the defendant’s alleged criminal behavior.337 In addition, even if the high-profile defendant is not accused of an egregious crime, high-profile criminal defendants, especially celebrities and professional athletes, are sometimes held to a higher standard of conduct than average members of the public.338 Thus, those high-profile criminal defendants, because of their status as celebrities, have a vulnerability to aggressive prosecution not shared by non-celebrity criminal defendants.339 Taking all of these factors into consideration, a court could find that a high-profile criminal defendant’s privacy rights, at least in some circumstances, outweigh the presumption of [*PG942]openness in judicial proceedings and thus allow the defendant to proceed anonymously throughout the trial.340
Even if a court does not think that a high-profile criminal defendant has a substantial privacy right that outweighs the common practice of openness in judicial proceedings, criminal defendants still have an important Sixth Amendment right to a fair trial.341 This constitutionally protected right is just as important as any asserted privacy right.342 Courts have protected the high-profile defendant’s Sixth Amendment right to a fair trial at the detriment of the media’s First Amendment right to freedom of the press in cases where judges have issued prior restraints on the media’s ability to publish certain information relating to the case.343 In 1976, in Nebraska Press Ass’n v. Stuart, the United States Supreme Court set out a three-part balancing test for a trial court to use in determining whether a prior restraint is constitutionally permissible in a criminal trial setting: (1) “the nature and extent of pretrial news coverage;” (2) “whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity;” and (3) “how effectively a restraining order would operate to prevent the threatened danger.”344 Therefore, in deciding whether to permit a high-profile criminal defendant to proceed anonymously, a court must also balance a criminal defendant’s Sixth Amendment right to a fair trial with the First Amendment presumption of openness of judicial proceedings.345 In weighing these competing constitutional interests, a trial court could use the three factors outlined in the Nebraska Press Court’s three-part balancing test to see which interest should prevail.346
In applying the three factors outlined in Nebraska Press to a high-profile criminal case to determine whether to allow a high-profile criminal defendant to proceed anonymously, the criminal defendant’s right to a fair trial would most likely outweigh the presumption of openness of judicial proceedings, thus permitting anonymity.347 In Nebraska Press, the Court found that the trial judge was “justified in concluding that there would be intense and pervasive pretrial public[*PG943]ity” because coverage of the murders dominated the media immediately after the crime occurred and because only a couple of days after the murders, a reporter revealed that the defendant had confessed to the crime.348 Similarly, in criminal contexts, anonymity should be allowed because the nature and extent of pretrial news coverage in high-profile criminal cases is often intense and prejudicial to the defendant.349 As Justice Lewis Powell argued in Nebraska Press, in issuing a prior restraint, a trial judge must consider the other alternatives listed in Sheppard that do not threaten First Amendment rights as severely as do prior restraints.350 In high-profile criminal cases, however, other remedies to mitigate the effects of unrestrained pretrial publicity have proven extremely ineffective at protecting a high-profile defendant’s right to a fair trial.351 Furthermore, the Court in Nebraska Press did not allow the prior restraint because the defense did not meet the heavy burden of demonstrating that, without a prior restraint, the defendant would not receive a fair trial.352 In that case, it was not evident that further publicity, unchecked, would distort the views of potential jurors so extensively that they could not render an impartial verdict.353 In high-profile cases, a court would analyze how effectively anonymity would operate to prevent unfair pretrial publicity from biasing potential jurors.354 As stated previously, allowing a high-profile criminal defendant to proceed anonymously would effectively prevent prejudicial media reports about the defendant from reaching potential jurors.355 Weighing these three factors, a trial judge could certainly find that the criminal defendant’s Sixth Amendment right to a fair trial prevails over the First Amendment rights of the press, thus permitting the defendant to proceed anonymously.356
Critics of criminal defendant anonymity might say that it would be an ineffective remedy to protect a defendant’s right to a fair trial because, similar to prior restraints, anonymity is completely at odds with the presumption of open judicial proceedings.357 This is so because the public does not have the ability to learn the defendant’s real [*PG944]identity; thus, the reasons justifying anonymity would never outweigh the openness presumption.358 Unlike prior restraints, however, with high-profile criminal defendant anonymity, the media can still attend the trial and report on the issues and the case’s judicial process.359 Therefore, even if a high-profile criminal defendant’s right to a fair trial prevails in the balancing test, the openness of judicial proceedings would not be entirely destroyed,360 as it would if a court ordered a prior restraint on the media.361 Thus, anonymity is an effective remedy because trial courts could permit high-profile defendants to proceed anonymously without completely invading the public and the media’s rights under the First Amendment.362
As stated above, anonymity is not a litigation strategy beneficial to all high-profile defendants.363 It is a strategy some high-profile defendants in some situations may choose to ask the judge to employ, given all the options and facts in a case.364 The biggest drawback of this remedy is that some defendants, due to their recognizability based on appearance, would have to waive the right to be present during the trial, which could send negative signals to the jury in some circumstances.365 Another problem with anonymity for a high-profile defendant is anonymity itself: sometimes celebrity status can help high-profile defendants get special treatment from jurors.366 A trial judge has discretion to weigh the factors and decide if the right to a fair trial is in jeopardy before ordering anonymity; indeed, a judge would not utilize a remedy in a case where doing so would not protect the constitutional rights of either side.367 Despite its drawbacks, anonymity, in [*PG945]certain circumstances, can help protect a high-profile defendant’s right to a fair trial.368
Because the prejudicial effects of pretrial publicity on a high-profile defendant’s Sixth Amendment right to a fair trial are often enormous, courts need remedies that strike the proper balance between a high-profile criminal defendant’s right to fair trial and the media’s freedom of press rights under the First Amendment. Over the years, courts have applied such remedies as venue changes, postponement, voir dire, jury instructions, and sequestration—all of which are highly ineffective at protecting a defendant’s right to a fair trial. In addition to utilizing Whitebread and Contreras’ Sheppard-Mu’Min remedy, which imposes gag orders on trial participants and fashions voir dire after the standards set out in Mu’Min v. Virginia, courts should allow high-profile criminal defendants to proceed anonymously. Anonymity fills the gaps of the Sheppard-Mu’Min remedy in two ways. First, permitting high-profile criminal defendants to remain anonymous during the judicial proceedings prevents the press from reporting damaging background information about the defendant that could negatively influence potential jurors, because the media would not know the defendant’s true identity. Second, any pretrial information about a defendant that does reach potential jurors most likely would not have harmful effects on the trial’s fairness because anonymity prevents impaneled jurors from connecting the defendant with any information about the defendant contained in pretrial news reports.
Courts have allowed party anonymity in civil trials for over twenty years to protect the substantial privacy rights of plaintiffs. In addition to civil plaintiffs, courts should apply anonymity to high-profile criminal defendants because they have substantial privacy and fairness rights that similarly need protection during judicial proceedings. Without high-profile criminal defendant anonymity, the pretrial publicity associated with high-profile cases will continue to influence negatively potential jurors, thus violating a defendant’s Sixth Amend-ment right to a fair trial. Courts should not tolerate such a constitutional violation in a judicial system that requires triers of fact to render impartial decisions.