criminal-law
Without sub judice rules, as exist in almost every other English-speaking jurisdiction, how can due process be assured?
<p>I have watched the media circus surrounding the arrest of a 21-year-old male on suspicion of having murdered nine people in Charleston. </p>

<p>Vast amounts of information are spewing forth from the news media, some of which will undoubtedly be true, some of which will have been entirely made up by newspapers to sell copy, and the rest of which will be somewhere in between. </p>

<p>How is it possible without rules of contempt to ensure that due process is unfettered? How can a jury be impaneled that has not already read so much about the case that they have preconceived ideas as to guilt or innocence? </p>

<p>In the early stages of the search police officials declared it was a <em>hate crime</em>. How exactly did they know this? And couldn't its widespread circulation affect the outcome of the case?</p>

<p>The United States gives the accused the right to a fair trial. However, it also gives <em>exceptionally</em> strong protection to the media (and to people in general) to speak on matters of public concern; there are very, very few cases where a US government (federal, state, or local) can legally order someone not to publish something (as opposed to letting it be published and then issuing sanctions). The rule of thumb for content-based restrictions on speech is that they must be the least restrictive way of achieving a compelling government interest. </p>

<p>For trials, there are other ways to achieve a fair trial without restricting the press. One of the most preferred ways to do it is to use the <em>voir dire</em> process, in which jurors can be rejected for prejudice. Courts can also move the trial to a new location; they can grant motions from the defense to delay the trial while things cool down; they can sequester the jurors (meaning that the jurors are kept in a central place and prevented from talking to anyone else or reading anything about the case); if none of these are done, a conviction can potentially be reversed on appeal. US courts will, wherever possible, modify the trial to mitigate the damage done by the press, rather than restrict the press to mitigate the damage to the trial.</p>

<p>For a review of a few different approaches to this in different jurisdictions, you might want to look at <a href="http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1493&amp;context=lcp">this law journal article</a>.</p>
