Pre-trial Publicity Effects in Making a Murderer
Compiled by Cesie Alvarez, Jeanette Chang, Faith Chung, and Chris Hong
Introduction
The issue of pretrial publicity and its effects on the jury pits two U.S. Constitutional Amendments against each other.On the one hand, the Sixth Amendment guarantees a criminal defendant’s right to a fair trial.1 On the other hand, the First Amendment affords the media freedom of speech and freedom of the press.2 This inherent tension between the two Amendments is especially salient when negative publicity about a criminal defendant finds its way to the ears of jurors because having an impartial jury is an essential component of a fair trial. Unfortunately, “[t]he law does not require that jurors be free of opinions about the defendant’s guilt to be qualified to serve on a criminal jury trial. A juror simply has to say he or she can put aside any opinions about the defendant’s guilt and listen to the evidence.”3
The Model Rules of Professional Conduct have promulgated rules to curtail the effects of publicity on a particular trial.Rule 3.6(a), which applies to all lawyers, prohibits a lawyer in a proceeding from making comments to the media that can cause a substantial likelihood of materially prejudicing a proceeding.4 Prosecutors are subject to an additional standard: Rule 3.8(f) provides that prosecutors must also refrain from making statements to the media that can lead to heightened public condemnation of the defendant.5 Failure to comply with the Model Rules could potentially result in disbarment for the offending lawyer.
Furthermore, the tribunal has various mechanisms to remedy the effects of pretrial publicity. The tribunal could order a change of venue so that the jury trial is moved away from the county where the crime occurred, or the tribunal could import jurors from another county.6 In the Brendan Dassey trial for example, the jury was imported from Dane County because of the intense media attention in the Manitowoc area.7 Nonetheless, given current technology and the widespread use of the Internet, the Court must come up with other ways to remedy the effects of pretrial publicity.
Pretrial publicity undoubtedly played an enormous role in the trial of Steven Avery for the murder of Teresa Halbach. Publicity surrounding the case was extremely high. The prosecution held a pretrial press conference detailing the gruesome death of Halbach—evidence that was subsequently not admitted into court. Specific examples of negative pretrial publicity will be discussed in further detail later.
This web page will focus on the impact of publicity on Steven Avery’s trial, along with that of Brendan Dassey’s. The web page seeks to address whether trial publicity influenced the jurors’ decision-making capabilities in both trials. Part I will introduce various social science research that demonstrate the effects of trial publicity. Section A will examine the effects of positive pretrial publicity. Section B will consider the salience of pretrial publicity. Section C will discuss the effects of pretrial publicity on jury deliberations. Part II will dive into Steven Avery’s case. Section A will discuss publicity surrounding Steven Avery’s wrongful sexual assault conviction. Section B will examine Steven Avery’s trial for the murder of Teresa Halbach. Section C will consider recent publicity surrounding Steven Avery, especially after the release of Netflix’s Making a Murderer documentary. Part III, which concludes the web page, will discuss the best methods to prevent the poisoning of the trial by pervasive trial publicity.
Part I: The Effect of Pre-trial Publicity
Numerous studies support the conclusion that pretrial publicity affects juror’s decision-making process. As the research shows, this is true regardless of whether the pretrial publicity is negative or positive, what crime the defendant is charged with, and how long ago the jurors were exposed to the pretrial publicity.
In a meta-analysis published by the American Psychological Association, researchers analyzed 44 independent empirical tests to examine what effect, if any, pretrial publicity (“PTP”) had on jurors.8 The meta-analysis was conducted by first gathering prior experiment results from a database and researchers directly.9 The experiments needed to have a statistical test on the effect of PTP on judgments of guilt or innocence.10 However, the types of PTPs and the amount given to subjects differed across the studies.11 The sample they obtained contained studies from 1966-1997 and tested 5,755 subjects.12 Samples were then categorized depending on the amount of information given to the control group, whether the PTP was real or fabricated, whether the study was an experiment or a survey of residents, the medium it was presented in, type of crime, and more.13
The results of the meta-analysis showed that across studies, those subjects that were exposed to negative PTP were more likely to find the defendant guilty than those exposed to less or no negative PTP (the mean effect size was r = .16).14 More specifically the researchers found that negative PTP had a significant effect on their judgment of the defendant.15 The researchers also broke down their results by the previously identified categories.16 They found that the survey method, in which they surveyed subjects from jurisdictions in which there was exposure to real PTP and a real trial, had a larger effect between the PTP and juror decision-making (r = .39).17 While the experiments had a lesser effect size than the surveys (r = .14), the PTP still significantly affected the subjects.18 This is important because the surveys more closely simulate what actual jurors are exposed to before a trial, which means that real jurors are likely strongly affected by PTP.
In addition, the meta-analysis found that there was a higher effect size when subjects were exposed to more specific information about the defendant and the crime, as opposed to when they were exposed to just general information.19 The factor that produced the greatest effect size was the type of crime the defendant was accused of committing.20 The results show that cases involving murder or sexual abuse had greater effect size both in the survey and experiment designs.21 The data also found that prejudgment is the time point with the greatest effect of PTP.22 The researchers note that PTP effects are particularly important because even a small amount of bias before the trial (or even during the trial) contradicts the legal presumption of innocence.
Section A: Emotions and Positive PTP
In the study by Ruva, Guenther, and Yarbrough, the researchers decided to study the effects of positive PTP on jurors.23 The researchers exposed subjects to negative PTP, positive PTP and no PTP, and measured the credibility ratings they gave to the defendant, their verdict, and their guilt ratings.24 They found that those exposed to negative PTP “were significantly more likely to vote guilty, indicate higher guilt ratings, and rate the defendants less credible” than those exposed to positive PTP and no exposure.25 Also, those exposed to positive PTP were more likely to vote not guilty, indicate lower guilt ratings, and rate defendants as more credible.26 The researchers also measured the subjects’ emotions after they were exposed to the respective PTP and had watched the trial. They found that those exposed to negative PTP had higher anger after watching the trial.27 This emotional response led to positively higher guilt ratings and guilty verdicts.28 The study also found that jurors were likely to distort the witness testimony they heard to support the PTP they were exposed to (positive PTP led to a pro-defense bias and negative PTP led to a pro-prosecution bias).29
Section B: Persistence of PTP Effects and Quantity
In another study published by the American Psychological Association, researchers examined the salience of PTP throughout the trial process.30 The researchers surveyed mock jurors in New York City, where an actual trial was taking place and they were naturally exposed to the PTP, and Boston, where they were far removed from the New York case and were experimentally given the same PTP as those in New York.31 The researchers tested the salience, or persistence of the PTP at three points throughout the trial process: two weeks before the trial, during the trial, and immediately following the conclusion of the trial.32 Researchers gave both the naturally exposed and experimentally exposed groups trial evidence to review over the course of eight weeks.33 The results showed that at each of the three time points, PTP effects persisted. They found that although there were shifts in guilt ratings throughout the time points (for example, guilt ratings dropped when prosecution evidence was presented) there was still a significant difference between groups; those that were initially pro-prosecution had higher guilt ratings and those that were pro-defense had lower guilt ratings.34 This pro-prosecution and pro-defense slant remained consistent before the trial, during the course of the trial (after evidence was presented), and after jury instructions were given.35 This is important because it suggests that evidence and jury instructions do not erase PTP biases.
The results of this research also showed that “the greater the quantity of exposure the more biasing the effects.”36 This means that the more coverage there is on a particular case, the more likely it is that a juror will be biased by the PTP.
Section C: Jury Deliberations
Finally, a study by the Department of Psychology at the University of South Florida found that PTP exposure affects the way mock jurors deliberate about evidence.37 More specifically, the researchers found that jurors exposed to negative PTP were more likely to discuss ambiguous trial facts in favor of the prosecution’s case and rarely ever used them to support the defense’s.38 The research also found that despite receiving jury instructions telling them not to discuss PTP, jurors “spent a significant amount of their deliberation time” discussing PTP.39 Other jurors not only failed to reprimand their fellow jurors for bringing it up, they acknowledged that the fact was from PTP and decided to discuss it anyway.40 The subjects commonly presented facts only heard in the PTP as facts presented at trial.41 The subjects responded by thinking they forgot it because of a lapse in memory and not because it was actually PTP.42
Part II: The Pre-Trial Publicity Surrounding Steven Avery’s Case
Section A: Steven Avery’s First Case
Steven Avery was no stranger to Manitowoc County’s law enforcement. The Netflix documentary, Making a Murderer, lists a number of Avery’s previous offenses: assault of his cousin by running her off the road, burglarizing a bar, and setting a cat on fire.43 Before Steven Avery was convicted of murdering Teresa Halbach in 2005, Avery had spent 18 years behind bars for a 1985 wrongful sexual assault conviction of Penny Beerntsen.44
On July 29, 1985, Beerntsen was raped while she was running along a beach and Avery was ultimately sent to prison for the crime.45 The county’s investigation was subject to controversy because Avery’s alibi witness and proof of purchase evidence contradicted Beerntsen’s story. After Beerntsen described the attack to the police, the police provided her with the photos of nine men, including that of Avery’s; Beerntsen selected Avery’s photo.46 At trial, Beerntsen identified Steven Avery as her rapist.47 However, one of Avery’s alibi witnesses, a clerk at a store, remembered Avery and his family buying paint from the store:
| A checkout tape put the purchase at 5:13 p.m. Beerntsen put the attack at 3:50 p.m. and estimated it lasted 15 minutes, which meant that Avery would have had to leave the scene of the attack, walk a mile to the nearest parking area, drive home, load his family into the car, and drive 45 miles in just over an hour.48 |
Ultimately, the jury convicted Avery and he was sentenced to 32 years’ imprisonment.49
It is important to note that Steven Avery and his family did not have a good reputation in their community. In reference to Avery’s conviction in the murder of Teresa Halbach, one neighbor said: “If you don't live here, I can see how you would view it and think there are questions. . . . But those of us who live here know that he's guilty.”50 Another neighbor said: “We feel safer with him in jail. He should be locked up and throw away the key.”51 A juror who was dismissed from the Halbach murder trial “believed the jury rendered their verdict based on Avery’s past and not the facts of the case”52: “You have to think of all the things he did when he was younger. People who remembered those events swayed the [other jurors].”53 In the very first episode of Making a Murderer, Reesa Evans, Steven Avery’s public defender in his sexual assault case, narrated the Avery family’s standing in the community:
| Manitowoc County is working class farmers. And the Avery family, they weren’t that. . . . They dealt in junk. . . . They didn’t dress like everybody else. They didn’t have education like other people. They weren’t involved in all the community activities. I don’t think it ever crossed their mind that they should try to fit into the community. They fit into the community that they had built.54 |
Moreover, Evans points out that the “[s]heriff’s department saw [Avery family] as kind of a problem, and definitely undesirable members of the community.”55
In Steven Avery’s sexual assault trial, the “jury deliberated for only four hours and convicted Avery almost exclusively on the eyewitness account”56 even though the jury had heard evidence (alibi witnesses’ accounts and proof of purchase) that made Beerntsen’s story seemingly implausible. The jury’s quick decision-making seems to corroborate results of various pretrial publicity studies that concluded that jurors exposed to negative pretrial publicity about a defendant are more likely to vote guilty. This also appears to substantiate the study by the Department of Psychology at the University of South Florida that held that jurors exposed to negative pretrial publicity about a defendant are more likely to interpret ambiguous facts in favor of the prosecution. Furthermore, as the meta-analysis by the American Psychological Association suggests, because Avery was accused of sexual assault, the effects of pretrial publicity were likely more significant.
Steven Avery’s case draws parallels to the Duke lacrosse case, in which members of the Duke University men’s lacrosse team were falsely accused of rape.57 In both cases, the defendants were notorious in their respective communities. With respect to the members of the Duke University men’s lacrosse team, “stories of boorish Duke student behavior had been in the local press. . . .”58 Furthermore, since 1999, about thirty-one percent of the Duke lacrosse players “had been charged with a variety of rowdy and drunken acts and . . . sixteen of the players on the current roster had been arrested in the past three years.”59 When the local press asked a neighbor about the rape incident, the neighbor said: “I’m sort of assuming it happened . . . because they’ve been such arrogant kids . . . . If you ask them to be quiet, they shout unpleasant things at you.”60 According to the author of the law review article, the Duke lacrosse team’s behavior “corroborate[d] the worst images of the team and, indirectly, the accusations themselves.”61
Likewise, the Manitowoc community did not hold Steven Avery in high regard. Because of Avery’s prior run-ins with the law, his past conduct makes it easier for members of the community to jump to the conclusion that Avery can be the type of person that could potentially commit murder.
Avery was ultimately released from prison in 2003 when DNA evidence proved that Avery was not Beerntsen’s attacker.62 DNA testing of hairs found on Beerntsen at the crime scene pointed to a convicted felon named Gregory Allen.63 As a result, Steven Avery was released from prison on September 11, 2003.64 Interestingly, Avery’s exoneration garnered extremely positive publicity: “Steve was made out to be a hero, and I [Penny Beerntsen] went from having sympathy to being this horrible person who made a mistake and is responsible for someone else’s suffering.”65
Section B: Steven Avery’s Second Conviction
Upon Avery’s release, he moved back to Manitowoc County and started working at his family’s local salvage yard.66 He then filed a $36 million lawsuit against the county, its former sheriff, Thomas Kocourek, and former district attorney, Denis Vogel.67 The suit alleged that Kocourek and Vogel were negligent in their investigation and prosecution of Avery on the 1985 rape charge.68 Avery and his attorneys agreed to dismiss all claims against the county and settle for $400,000.69
On October 31, 2005, 25-year-old Teresa Halbach was murdered.70 Authorities initially arrested Avery for being a felon in possession of a firearm.71 Bone fragments, teeth, and camera and cell phone pieces were found in a burn pit near Avery’s trailer.72 Calumet County special prosecutor Ken Kratz charged Avery with first-degree intentional homicide, mutilation of a corpse and possession of firearms by a felon.73 Kratz announced that Avery’s blood was found inside Halbach’s vehicle and that Avery was the last person to see her alive.74 An FBI laboratory test confirmed that the remains found at the Avery salvage yard were Halbach’s.75 In March, Avery’s 16-year-old nephew, Brendan Dassey, was arrested as co-conspirator four months after Halbach vanished. Dassey was charged with being party to first-degree intentional homicide, sexual assault, and mutilating the corpse.76 Kratz also charged Avery with kidnapping, false imprisonment and sexual assault with a dangerous weapon.77 Manitowoc County Circuit Judge, Patrick Willis, dismissed the first-degree sexual assault and kidnapping charges.78 Avery’s attorneys alleged that Manitowoc County sheriff’s officers planted evidence against Avery in retaliation for the lawsuit that Avery had filed against Manitowoc County.79 The jury found Avery guilty of intentional homicide and being a felon in possession of a firearm but acquitted him of mutilation of a corpse.80 Avery was sentenced to life imprisonment with no chance of parole for Halbach’s murder.81
There were numerous instances of pre-trial publicity in the case of Avery’s second conviction. Avery’s attorneys allege that Avery’s case received negative pre-trial publicity because of the overlap between Dassey’s case and Avery’s case.82 Dassey’s attorneys admitted Dassey’s involvement in the crime, and both tried to pinpoint the blame on Avery in court as well as when they made comments to the media.83 Another instance of prejudicial pre-trial publicity was when the state conducted eight televised news conferences that identified Avery by name and as a “person of interest.”84 The news conferences provided a step-by-step recounting of the state’s gruesome theory of the murder and torture of Halbach.85 Furthermore, many images of Avery in prison attire appeared on television and on the Internet.86 The local and neighboring television stations also provided extensive coverage of the suppression motions in both the Dassey and Avery cases in which the public learned about potentially inadmissible material and the defense efforts to exclude those materials.87 Furthermore, Avery’s attorneys alleged that editorials commenting on Halbach’s family and the broadcasting of Halbach’s funeral appealed to potential jurors’ sympathy.88 Overall, the media attempted to portray Avery as a man who was given a second chance but “threw it away with the murder of an attractive young woman.”89 This added to the public’s negative view of Avery due to his prior run-ins with the law. The trial judge rejected the motion filed by Avery’s attorneys to dismiss the charges against Avery because of the “inflammatory and highly prejudicial” pretrial publicity ruling that there was no legal precedent for such action.90 By the time Avery’s lawyers received filled-out questionnaires before jury selection, most of the community had already bought into the media’s story: Steven Avery was an evil man.91 Every potential juror already believed he was guilty.92
Barely four months into the case, Kratz made at least seven statements to the press implicating Avery and Dassey in Halbach’s murder.93 These statements were likely extremely prejudicial to Avery’s case since “[t]he risks of prejudice are magnified in smaller communities because of the pervasive nature of the publicity and the likelihood that virtually the entire community will have strong feelings about the case.”94 Furthermore, the statements have been highly criticized by legal experts as crossing the line of ethical conduct.95 Wisconsin’s rule of professional conduct for prosecutors resemble those that are recommended by the American Bar Association in which prosecutors are not supposed to make public statements prior to a defendant’s trial regarding the following areas:
The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness. The identity or nature of physical evidence expected to be presented. Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in a deprivation of liberty. Information the lawyer knows or reasonably should know is likely to be inadmissible evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial.96 On March 2, 2006, Kratz began a press conference by warning children under the age of 15 years old not to watch or listen to the press conference.97 However, he did not issue such a warning for those who might have been prospective jurors for the Avery and Dassey trial. Kratz then proceeded to go into gruesome detail about the alleged murder of Halbach by Avery and Dassey.98 The prosecutor also refused to answer if there had been any physical evidence supporting Brendan’s confession.99 At trial, the prosecutor was not able to introduce Brendan’s confession because it amounted to hearsay. However, any juror who followed the press coverage of Avery’s case would have obtained evidence that was inadmissible at trial.100 When one juror was asked why they voted guilty and what they thought had happened to Halbach, the juror replied “[t]orture and rape. Then he shot her in the head. He cut her up and put her in a burn barrel.”101 This response is significant because evidence of Halbach being raped and tortured was not admissible in Avery’s trial. Although the trial judge had instructed the jury that they were not to consider the rape and torture scenario because it was not introduced into trial, the juror’s comment has made it clear that information from the press conference was taken into consideration. This is consistent with the study by Ruva, Guenther, and Yarbrough that found that jurors who were exposed to negative pre-trial publicity were significantly more likely to vote guilty. This is also consistent with the study by the Department of Psychology at the University of South Florida which found that although jurors received jury instructions telling them not to discuss PTP, jurors often discussed it anyways.
Section C: The Interaction Between Pre-Trial Publicity and Post-Trial Publicity and its Impact on Jurors
There is no doubt that media has the potential to greatly influence jurors. In fact, studies generally show that jurors exposed to negative pretrial publicity are more likely to judge defendants as guilty compared to jurors exposed to less pretrial publicity or at least more neutral pretrial publicity.102 In a world where people are used to receiving information in a constant stream, media outlets have resorted to short, head-turning headlines in order to catch attention.103 However, is it possible for post-trial publicity from one’s first conviction and pre-trial publicity before one’s second trial to influence jurors to convict a second time? How would post-trial publicity after one’s second conviction potentially affect jurors in a third trial?
After Steven Avery’s first conviction for the rape of Penny Ann Beerntsen, the media showed no interest in his case.104 Although his mother tried for several years to obtain the interest of numerous national media outlets (like NBC Dateline) about her son’s wrongful conviction, Dateline only showed interest in Avery’s case after he was arrested for the murder of Teresa Halbach shortly after his release from prison.105 In Making a Murderer, a reporter for Dateline even indicated that murder sells stories.106 Relatively little had been known nationally about Avery’s wrongful first conviction; after his second arrest, the media had its head-turning headline: Steven Avery was a man who had been given a second chance but had thrown it away with the horrific murder of Teresa Halbach, an attractive, young woman.107 Avery’s fate was sealed: he was convicted and declared guilty.
Nonetheless, Avery was given anther opportunity to redeem himself. After Making a Murderer became widely popular on Netflix, Kathleen Zellner, a highly acclaimed appeal attorney, took on his case.108 Fans of Making a Murderer and Ms. Zellner’s tech-savvy ways on Twitter have currently helped renew support for Avery.109 As Avery appeals his case, Making a Murderer continues to gain popularity, people continue to discuss theories as to who else could have committed Halbach’s murder on Reddit, and Ms. Zellner has begun to attack the evidence that put Avery behind bars through short tweets.110 The tide has turned, and it seems as if a growing number of people generally believe Avery is innocent. The media has begun to shift towards a positive view of Avery, now portraying him as an innocent man put behind bars. Likewise, the media has had a positive effect on the case of Adnan Syed, the subject of Serial and a man also portrayed as wrongly convicted for the murder of his ex-girlfriend. Although Syed unsuccessfully requested to reopen his appeal and overturn his life sentence in the last dozen years, his request was finally granted after Serial’s growing popularity.111
In 2015, Steven Avery’s appeal that there should have been a change in venue given the nature of the publicity, and that the Court abused its discretion when it failed to grant such a change in venue, was rejected.112 Despite the studies and arguments that publicity does not affect jurors’ perceptions of the accused, there is strong evidence that negative publicity persuaded jurors to convict Avery a second time. If the Wisconsin Court of Appeals declares a mistrial and vacates Avery’s conviction based on his claims, prosecutors would have to decide whether to retry him without the impermissible evidence.113 Hypothetically, assume Avery’s conviction was vacated, the prosecutors did decide to retry his case, and the judge decided that there was still no need for a change of venue. How would the current publicity affect the jurors in his case?
Given that Making a Murderer has inspired multiple protests and that some rallies led by out-of-towners have occurred right outside Manitowoc County Courthouse, the Manitowoc community is still likely to have a negative perception of Steven Avery. After all, Making a Murderer portrays Manitowoc as a place that sent an innocent man to prison twice.114 To many Manitowoc residents, the documentary continues to bring bad publicity and has reinforced their negative opinion of Avery.115 A resident who passed out signs during one such rally declared, “You don’t know the community. You don’t know the people. You don’t know all the details of what happened.”116 Avery’s lawyers would have a hard time convincing a scarred community to give Avery yet another chance to prove he is innocent.
Conversely, assume the judge decided that there was a need for a change of venue. How would potential jurors be affected by the new positive publicity surrounding Steven Avery? After all, it is almost impossible to avoid having heard of his case, especially with the popularity of Making a Murderer. For at least a couple of weeks in December 2015 and January 2016, Steven Avery was trending on Facebook.
According to a study (in addition to the ones detailed in the previous sections) in which researchers had one group of participants watch negative videos about the defendant and the other group watch positive videos about the defendant, those who watched positive videos did not significantly change their judgment of the defendant as compared to those who had watched negative videos.117 Thus, because Making a Murderer can be considered to present a more positive/somewhat neutral view of Steven Avery, one could argue that the jurors are less likely to have impacted judgments, leading to a fairer trial. Still, given the huge scale of media and Internet access, can judges preemptively account for juror bias in today’s new world where publicity has a faster and greater effect than ever before?
Part III: Mitigating Juror Bias Today
Technological advances have created new forms of Internet-based communications, leading to unprecedented access, content, and coverage of events. Consequently, the advent of these Internet-based communications calls for a change to the way judges approach the Sixth Amendment fair trial analysis and necessitates a different way of managing the effects of publicity.
The right to a fair trial by an impartial jury is a fundamental constitutional right.118 Nonetheless, pre-trial publicity of criminal trials has always had the potential to instigate juror bias by exposing prospective jurors to prejudicial information.119 In fact, most potential jurors are at least aware of a case prior to trial due to pre-publicity exposure.120 Polls of potential jurors in areas where a trial is scheduled have tended to demonstrate a general pro-prosecution bias.121 Potential jurors may retain such prejudice for differing lengths of times after exposure, depending on if the information they were exposed to was emotional or factual.122 Accordingly, where “reasonable prejudice to the defendant [is] likely to occur,” the court generally uses methods such as extensive voir dire, sequestering, and in rarer instances, grant of a motion for a change of venue.123
New media outlets, however, such as YouTube, Netflix, and iTunes podcasts, have posed a different kind of challenge for courts. Extensive voir dire, sequestering, and the rare approval of a change of venue are no longer sufficient to mitigate juror bias, especially as it becomes less and less likely that potential jurors have not been exposed to prejudicial information. For instance, due to the ease of public access, the aforementioned media outlets, “including blogs or other private websites that provide the average Internet user with his or her news . . . have in recent years outpaced traditional news sources.”124 This poses a couple of problems. First, such media sources have great storage capacity. Any person can pull up YouTube videos from the distant past, meaning that prejudicial effects from such videos may not fade.125 Second, non-traditional media sites are often unchecked and do not have the same standards as traditional media sites.126 Users of YouTube, Netflix, iTunes podcasts, etc., are able to post opinionated rather than factual videos, comments, and so forth. Sometimes, these videos, comments, and podcasts contain “partial facts and unconfirmed gruesome details of the commission of [a] crime and . . . direct accusations of the accused prior to trial.”127 Finally, because such media sites are free (or more affordable) and often disseminate information faster through the Internet, they often supplement or replace the public’s use of traditional more reliable news media.128 Thus, content provided on sites like YouTube, Netflix, and iTunes podcasts, have outpaced traditional avenues of regulation to ensure an impartial jury.
Subsequently, in Pre-Trial Prejudice 2.0: How YouTube Generated News Coverage is Set to Complicate the Concepts of Pre-Trial Prejudice Doctrine and Endanger Sixth Amendment Fair Trial Rights, Matthew Mastromauro comes up with ways that the court can regulate pre-trial publicity and its new forms online. For example, although individuals may be exempt from a court’s gag order that would otherwise reach traditional media outlets, Mastromauro suggests that attorneys can instead flag and report content to the site managers and providers directly.129 He also suggests that attorneys do a keyword search regarding the crime.130 In this way, the attorneys can come up with media that is relevant and most searched by users. More judges might be convinced that a change of venue is needed once confronted with insight as to the possible content the jurors might have been exposed to previously, making approval of a motion for a change of venue less rare.131 Likewise, some sites and non-traditional media avenues keep track of who “visits” as well as how many people view their content.132 Obtaining evidence that media related to the case at hand is immensely popular and widely circulated might help boost an attorney’s argument for a change in venue.133
Nonetheless, these solutions have their limitations. Mastromauro points out that flagging or reporting content is not a guarantee that the content in question will actually be removed.134 In addition, privacy protections may prevent an attorney from obtaining user information to figure out whether the numerous views are the result of one person revisiting the content repeatedly.135 Aside from copyrighted material, users also have the right to post their opinions and may be protected by standards that argue that the Internet should be free from regulation.136
In conclusion, there are two main ways to combat pre-trial publicity and its potential to instigate biases in jurors: 1) judges should revise their instructions to jury members to account for technology and non-traditional forms of media, and 2) courts should create new Sixth Amendment legal analyses that recognize the advent of such media. It is finally time that courts recognize that current standards are not adequate. Ultimately, these current standards would still fail to protect Steven Avery today.
1. Nancy Mehrkens Steblay et al., The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review, 23 L. Hum. Behav. 219, 219 (1999).
3. Donna J. Brown, The Anatomy of ‘Making a Murderer’: Media Changes the Game in High-Profile Cases, Concord Monitor, Feb. 14, 2016.
4. MR 3.6(a): “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Model Rules of Prof’l Conduct r. 3.6(a) (Am. Bar Ass’n 1983).
5.MR 3.8(f): “[E]xcept for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.” Model Rules of Prof’l Conduct r. 3.8(f) (Am. Bar Ass’n 1983).
6. Ellen Brickman et al., How Juror Internet Use Has Changed the American Jury Trial, 1 J. Ct. Innovation 287, 296 (2008).
7. Dassey Jury to be Selected from Dane County, La Crosse Tribune, Mar. 22, 2007.
8. Nancy Mehrkens Steblay et al., The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review, 23 Law and Human Behavior 219, 221 (1999).
23. Christine L. Ruva, et al., Positive and Negative Pretrial Publicity: The Roles of Impression Formation, Emotion, and Predecisional Distortion, 38 Criminal Justice and Behavior 511 (2011).
30. Tarika Daftary-Kapur et al., Examining Pretrial Publicity in a Shadow Jury Paradigm: Issues of Slant, Quantity, Persistence and Generalizability, 38 Law and Human Behavior 462.
37. Christina Ruva & Michelle A. LeVasseur, Behind Closed Doors: the Effect of Pretrial Publicity on Jury Deliberations, 18 Psychology, Crime & law 431 (2012).
43. Melissa Jeltsen, ‘Making A Murderer’ Left Out Disturbing Details of Steven Avery’s Past, Huffington Post, Jan. 15, 2016.
44. Making a Murderer, Netflix (Dec. 18, 2015).
46. Steven Avery, The Innocence Project (last visited Mar. 17, 2016) [hereinafter Innocence Project Avery].
50. Jeff Truesdell, Neighbors of Making a Murderer’s Steven Avery Speak Out About His Guilt or Innocence: ‘Those of Us Who Live Here Know He’s Guilty,’ People, Jan 14, 2016.
54. Kate Tuttle, Whiteness and “Making a Murderer”: Manitowoc, the “One-Branch Family Tree” and the Sinister Race Science of “Degenerate Whites,” Salon, Jan. 7, 2016.
56. Innocence Project Avery, supra note 46.
57. Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to “Do Justice,” 76 Fordham L. Rev. 1337, 1337 (2007).
62. Allison Piwowarski, Where is Gregory Allen From ‘Making A Murderer’ Now? He’s Serving Time, Bustle, Dec. 18, 2015.
63. Innocence Project Avery, supra note 46.
65. Christie Thompson, Penny Beerntsen, the Rape Victim in ‘Making A Murderer,’ Speaks Out, The Marshall Project, Jan. 5, 2016.
66. John Ferak, Steven Avery Case Timeline: Update, Post-Crescent, Feb. 3, 2016.
67. Lesley Messer, 5 Things to Know About Steven Avery From ‘Making a Murderer’, ABC News, Jan. 5, 2016.
68. John Lee, Avery Settles $36M Civil Lawsuit, Post-Crescent, Jan. 7, 2016.
70. Teen Guilty in Death of Photographer, Chicago Tribune, Apr. 27., 2007.
82. Defendant’s Memorandum on Examples of Prejudicial Pretrial Publicity (July 23, 2006).
83. John Walters, The Quotes That Tell the Story of ‘Making a Murderer’, Newsweek, Jan. 7, 2016.
84. See Defendant’s Memorandum on Examples of Prejudicial Pretrial Publicity, supra note 85, at 3.
89. Donna J. Brown, The Anatomy of ‘Making a Murderer’: Media Changes the Game in High-Profile Cases, Concord Monitor, Feb. 14, 2016.
90. John Ferak, Legal Experts Blast Avery Prosecutor’s Conduct, Post-Crescent, Jan. 24, 2016..
98. Jethro Nededog, ‘Making a Murderer’ Prosecutor Admits 2 Crucial Mistakes in the Case Against Steven Avery, Business Insider, Jan. 5, 2016, http://www.businessinsider.com/making-a-murderer-prosecutor-mistakes-2016-1.
101. ‘In Touch’ Exclusive: ‘Making a Murderer’ Bombshell –New Evidence From Jurors Could Free Steven Avery, In Touch Weekly, Jan. 13, 2016.
102. See generally Nicole L. Waters & Paula Hannaford-Agor, Jurors 24/7: The Impact of New Media on Jurors, Public Perceptions of the Jury System, and the American Criminal Justice System, Nat’l Ctr. for St. Ct.,.
104. Donna J. Brown, The Anatomy of ‘Making a Murderer’: Media Changes the Game in High-Profile Cases, Concord Monitor (Feb. 14, 2016)
108. See Charlotte Beale, Making a Murderer: Steven Avery’s New Lawyer Attacks Prosecution Case Via Twitter, Independent (Jan. 23, 2016).
111. Justin George, ‘Serial’ Podcast Subject Syed Makes His Case for a New Trial, Baltimore Sun (Mar. 23, 2015).
112. Examining the State of Appeals by Avery and Dassey, Fox11News (Jan 6, 2016).
113. Katie Delong, Steven Avery Files Appeal, Asking Judges to Throw Out His Murder Conviction, Fox6Now (Jan. 13, 2016).
114. Bret Lemoine, Bad Publicity: Manitowoc Prepares for Large Crowd at Steven Avery, Brendan Dassey Rally, Fox6Now (Jan. 28, 2016).
117. Jennifer L. Jarrett, Jurors’ Judgments and the Media: Is All Pretrial Publicity Equal? (Aug. 2013) (unpublished M.A. thesis, Appalachian State University) (on file with the Appalachian State University Belk Library and the Deparment of Psychology).
118. See U.S. Const. amend. VI.
119. See Sheppard v. Maxwell, 384 U.S. 333, 340–42 (1966) (discussing the negative effects that a very publicized pretrial can have on prejudicing potential jurors) [hereinafter Sheppard].
120. See Christina Studebaker & Stephen Penrod, Pretrial Publicity: The Media, The Law and Common Sense, 3 Psychol. Pub. Pol’y & L. 428, 430 (1997) [hereinafter Studebaker & Penrod].
122. See Studebaker & Penrod, supra note 25, at 437–438 (describing “emotional” media as media focused primarily upon human elements such as details of the crime, the victim, or statements made by the victim’s family, and describing “factual” media as media focused on investigative elements such as possible confessions and strength of evidence).
123. See Sheppard, 384 U.S. at 350.
124. Matthew Mastromauro, Pre-Trial Prejudice 2.0: How YouTube Generated News Coverage is Set to Complicate the Concepts of Pre-Trial Prejudice Doctrine and Endanger Sixth Amendment Fair Trial Rights, 10 J. High Tech. L. 289, 324 (2010) [hereinafter Mastromauro].
131. Id. at 343. Judges are generally reluctant to grant a change in venue even though might be most effective way to avoid the negative effects of pre-trial publicity. See, e.g., Nancy M. Steblay et. al, The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review, 23 L. Hum. Behav. 219, 230 (1999).