Witnesses, Jurors, and the Freedom OF Speech
WITNESSES, JURORS, AND THE FREEDOM OF SPEECH
The 1990s witnessed a dramatic increase in "checkbook journalism," in which individuals are paid for providing information to the print or electronic media. Although numerous aspects of this practice may be troubling, the greatest concern has been expressed over the prospect of payment to actors in the judicial system who sell their stories to the news. Specifically, the specter of witnesses at trial and jurors realizing financial gain from their service in high-profile trials has caused many to argue for legal restrictions on the ability of certain trial participants to cash in on their fifteen minutes of fame. In turn, such a prospect has raised the fear that critical first amendment rights to freedom of speech will be sacrificed.
Obviously, most criminal trials proceed without anyone being compensated by the media for telling his or her story. In the vast majority of crimes, public interest would not sustain the payment of money for the "exclusive" scoop. In high-profile trials, however, the lure of the dollar may very well prevail. Although the frenzy of tabloid journalism surrounding the O. J. Simpson murder trial comes most readily to mind, the practice of checkbook journalism long preceded that case. For example, the woman who assisted the alleged rape victim of William Kennedy Smith—and who later became a pivotal witness at trial—received $40,000 from the media for her story. Two witnesses in the child-molestation charges against pop star Michael Jackson sold their stories to television.
Yet the Simpson trial set new records both for press coverage and for prices paid for stories concerning the double-murder of Nicole Brown Simpson and Ron Goldman. Witness Jill Shively sold her story of seeing O. J. Simpson driving near the murder scene; two other witnesses who worked in a knife store and who testified at a preliminary hearing that Simpson had purchased a knife were paid $12,500 for their story by the tabloid National Enquirer.
Witnesses (or potential witnesses) are not the only ones to cash in on their involvement in the judicial system; jurors have also discovered that jury duty can be profitable. Perhaps the best-known example of juror journalism arose out of the trial of Bernard Goetz, who was accused of shooting several youths after they had attempted to mug him on the New York subway. Two jurors ultimately sold their views about the case to the news media. During another high-profile trial, the boyfriend of the jury fore-woman tried to negotiate with several newspapers for the sale of the foreperson's account of the trial. One juror during the Rodney King trial stated that although she had no current plans to sell her story, the idea appealed to her capitalistic instincts.
What, if anything, is wrong about such financial endeavors, either by witnesses or jurors? Simply, the concern is that money corrupts. Permitting witnesses to profit from selling their stories may threaten the integrity of a criminal trial in several ways. It may lead the jury to discredit the testimony of a truthful witness, or even cause an attorney to decide not to call a witness out of fear that the jury will react negatively. Alternatively, a witness may testify falsely on the stand, because the lure of money has prompted the witness to lie or embellish the truth to the media, and that false story has become the version frozen in place.
The integrity of the judicial system is also threatened when a juror sells—or anticipates selling—the story of his or her jury service. The lure of the dollar may encourage a potential juror to lie during voir dire in order to obtain a seat on a high-profile jury. The juror's perception of the testimony may be altered by her conflicting roles of juror and journalist. A juror seeing dollar signs may seek the "truth" that most effectively sells a story. Finally, there is the concern that a juror will manipulate a verdict to ensure the most dramatic—and salable—outcome.
These are legitimate concerns, and they have led several states to adopt laws restricting the ability of witnesses or jurors—or both—to profit from their service. These laws, however, constitute a restriction on speech and hence raise potential First Amendment problems. Information concerning criminal acts—be it about the victim, the alleged perpetrator, the behavior of the police, or others—provides useful information on matters of public concern. Financial remuneration, moreover, may cause a critical witness to come forward who otherwise might not. Suppose this nation faced a scandal on the magnitude of watergate, and the only person with information refused to divulge it without monetary gain.
Similarly, juror speech is valuable. A juror's report may explore or criticize the workings of the judiciary and expose flaws and potential abuses. Explanations of how the deliberations progressed could reinforce notions that the jury system does work, and thus increase public confidence in the justice system.
Ultimately, whether laws restricting juror or witness speech violate the freedom of speech will turn on information that today remains merely a matter of speculation. How real is the risk that the payment of money will subvert a witness's oath to tell the truth or the juror's promise to be impartial? The evidence remains theoretical. Until such time—if ever—that the alleged harm of checkbook journalism becomes more substantiated, it is unlikely that the courts will—or should—sanction a law that decreases expression on critical social and political issues.
Strauss, Marcy 1994 Juror Journalism. Yale Law and Policy Review 12:389–423.
——1996 From Witness to Riches: The Constitutionality of Restricting Witness Speech. Arizona Law Review 38:291–329.