All legal systems worthy of credit have a commitment to achieving fairness between the parties to the litigation. In addition, common law legal systems have a longstanding commitment to openness in judicial proceedings. At the same time, and in part for the same reasons, they also have a longstanding commitment to freedom of expression. There is inevitably a tension among these three goals, because in cases of great public interest openness leads to publicity, and publicity may threaten or at least appear to threaten the fairness of a trial. In addition, sometimes publicity may create an intrusion on the lives of jurors and witnesses. This is a well-trodden area, and I can only skim the surface of it in this essay. I am going to offer an American perspective on this area - or at least the perspective of one American. I am far from an uncritical advocate of the way that we deal with these problems in the United States. At the same time, I am sufficiently inured in the American ideology of the area that some of the approaches in England (and, I believe, elsewhere throughout the United Kingdom) strike me as unduly restrictive of freedom of expression. I am aware of this bias, and aware of the dangers of criticising a system with which one is not intimately familiar. Nevertheless, I will offer my own views, for what they are worth.
Publication Information & Recommended Citation
Friedman, Richard D. "Attempting to Ensure Fairness in the Glare of the Media." In The Judicial Role in Criminal Proceedings, edited by S. Doran and J. D. Jackson, 93-108. Oxford: Hart Publishing, 2000.