KEYNOTE ADDRESS: THE IMPACT OF
TELEVISION ON THE JURY SYSTEM:
ANCIENT MYTHS AND MODERN
REALISM
FRED GRAHAM*
MR. MINOW: I have known Fred Graham since we were both in
the government in the 1960s, but I think we really all know him as
the Supreme Court correspondent for many years for the New York
Times and later the law correspondent for CBS News. He has won
every award there is to win in broadcasting. He has written four
books. He is a lawyer and a first class journalist. I am very pleased
to present Fred Graham to you.
MR. GRAHAM: Mr. Minow, thank you very much and thanks to all
of you for the opportunity to be here on this occasion where you are
discussing a subject that is obviously of great interest to me-that is,
the influence of the media and specifically television on events, on
people, and on our legal system.
What I have realized more and more over the years is not only
that television affects people's perceptions, but also that it affects
them in ways that the rest of us would not predict, and in ways that
would surprise us. In fact, to an increasing degree the effect of television on the American public is changing. This was raised by Ron
Olson in the last session when he asked Beth Loftus if there really is
a difference between the impact of television on jurors and the impact of other media. He asked her if there have been empirical studies and empirical evidence on the subject.'
She never had an opportunity to answer. I asked her the same
question a minute ago, and I think the answer is that probably there
have not been studies on the subject. My own experience over the
last few years has persuaded me that not only is it very difficult to
* Chief Anchor and Managing Editor, The American Trial Network
1. See Selecting ImpartialJuries:Must IgnoranceBe a Virtue in Our SearchforJustice, Panel Two:
CurrentJudicialPractice,Legal Issues and ExistingRemedies, Annenberg Washington Program Conference,
May 11, 1990, 40 AM. U.L. REv. 573, 579-80 (1990).
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measure the impact of television, but that the impact is changing
because of an odd interrelationship between television, changing
technology, and the public's changing expectations of and demands
on the media. This dynamic has a ratcheting effect and creates tremendous change both in our media, television, and in the way the
public perceives television and reacts to it, which may be even more
crucial to the subject before us.
In my judgment, we lawyers have a professional blind spot with
regard to how television impacts on public perceptions. This is a
result of the legal method in which we were all trained; a method
that relies on a principle of law that is developed, usually by a court,
and then that principle is applied by analysis and analogy to like
situations. That method has a fundamental flaw when the principle
at issue is how the public will react to a certain exposure to the media. That method does not take into consideration the fact that people perceiving the media see it in a differenc way today and react in a
different way a quarter of a century later than they did when rules
were laid down in Rideau v. Louisiana,2 Estes v. Texas 3 or Maxwell v.
Ohio. 4 If we do not change the rules, because we assume that public
reactions to the media has remained a constant, then we are in danger of seriously impeding the jury system, based on fallacious assumptions. We impede it more than we realize because of this blind
spot that we have.
I first began to suspect that our lawyerlike way of addressing this
issue had swept us off the track when I was assigned by CBS to cover
a series of some of the most sensational trials of the century. It became absolutely clear to me that jurors were absolutely unphased by
all of the broadcasting that my colleagues and I had been doing on
television. It first struck me with regard to Maurice Stans' case in
connection with Watergate. 5 He was acquitted, and we said how can
2. 373 U.S. 723 (1963) (finding denial of due process to refuse change of venue request
for criminal defendant after film of defendant in police interview immediately following arrest
was broadcast over local television prior to defendant being brought to trial). The film
showed the defendant confess, in detail, to the crimes with which he was later charged. The
Court reasoned that the film, by virtue of being televised, would substitute for a trial in the
minds of the public and make the actual trial a hollow formality. Rideau v. Lousiana, 373 U.S.
723, 726 (1963).
3. 381 U.S. 532 (1965) (addressing subject of television coverage of criminal trial for
first time). The Court reversed a criminal conviction on the basis that live television coverage
of a pretrial hearing on a motion to prevent telecasting was prejudicial and infringed on fourteenth amendment due process rights to a fair trial. Estes v. Texas, 381 U.S 532, 536-52
(1965).
4. 384 U.S. 333 (1966) (holding televised inquest where defendant was interrogated for
five hours without counsel prior to trial for murder, and failure to sequester jury during trial
created massive prejudicial publicity preventing fair trial as required by fourteenth
amendment).
5. See United States v. Mitchell, 372 F. Supp. 1239 (S.D.N.Y. 1973) (dismissing various
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625
this be? Then, over the years, I covered a drumbeat of cases, including the trials of John Hinckley, 6 John Connelly, 7 and John
DeLorean. 8 John DeLorean was a man who was seen committing
the alleged crime on television, and he was acquitted. Then, of
course, in the Watergate cases themselves, although some defendants were convicted, there were some acquittals. Remember Ken
Parkinson? 9 He probably practices law in this city to this day. He
was acquitted. Bob Mardian t° was acquitted of all the major
offenses.
I was persuaded in the Watergate case, as in the others, that the
jurors were impressed that they had been given great power. As
citizens they were given responsibility over the high and the mighty.
They were not going to let someone like me tell them what to think
motions by defendants including Maurice Stans, former Secretary of Commerce in the Nixon
administration). Stans was subsequently acquitted in April of 1974 of obstructingjustice, perjury, and conspiracy in connection with a Securities and Exchange Commission investigation
of activities of financier Robert L. Vesco. Vesco had made a $200,000 suspect contribution to
the Committee to Re-elect the President of which Stans was chairperson. See also MeyerJohn
N. MitchellPrincipalIn Watergate Dies at 75, Wash. Post, Nov. 10, 1980 at Al, col. 1. (recounting
proceedings against Stans and Mitchell who were co-defendants).
6. See United States v. Hinckley, Crim. No. 81-306 (D.D.C.June 21, 1982) (findings and
order); see also Kiernan and Pianin, Hinckley Found Not Guilty, Insane: Will be Committed to St.
Elizabeths, Wash. Post, June 22, 1982, at Al, col. 4 (recounting announcement by Judge Barrington D. Parker ofjury verdict after two month trial: "not guilty by reason of insanity" on
each of thirteen counts in connection with wounding President Reagan, presidential press
secretary James Brady, D.C. police officer Thomas K. Delahanty, and Secret Service agent
Timothy McCarthy on March 30, 1981); see also Kiernan, Hinckley Is Committed to Indefinite Stay at
St. Elizabeths, Wash. Post, Aug. 10, 1982, at Al, col. 1.
7.
See Mashek, Preview 80's Texas' Connally: Bucking Odds, Coming up Fast, U.S. News &
World Report, July 2, 1979, at 29, col. 1 (referencing Connally's April 17, 1975 acquittal, by
jury, of charges of accepting $10,000 in payoffs from milk producers' group for assistance in
obtaining favorable legislation for milk price supports); see also Connally Cleared - Back to Poli-
tics?, U.S. News & World Report, Apr. 28, 1975, People of the Week at 36, col. 1. (recounting
events of trial).
8. See United States v. DeLorean, 561 F. Supp. 797 (C.D. Cal. 1983) (ordering that all
court documents after December 22, 1983, relating to John DeLorean's arrest on charges of
violating federal narcotics statutes, be filed in camera and thereafter sealed to prevent prejudicial publicity). DeLorean was indicted in October 1983 and the court filings had been open
to the public before the December 22nd order. See also Associated Press v. United States
District Court, 705 F.2d 1143 (9th Cir. 1983) (vacating order sealing documents in DeLorean
trial finding documents could be made available to public without irreparable injury to fair
trial rights). The court made its decision in light of the level of public interest and extensive
press coverage generated by the arrest and trial. Id. at 1146.
9. See United States v. Mitchell, 372 F. Supp. 1239 (S.D.N.Y. 1973) (detailing attorney
Kenneth Parkinson's representation of Maurice Stans during grand jury investigation which
resulted in violation of Stans' fifth and sixth amendment rights when Parkinson failed to recognize protection for Stan's documents under attorney work product privilege rule). Parkinson was subsequently acquitted of criminal charges brought against him in connection with
the Watergate scandal.
10. See United States v. Mardian, 546 F.2d 973 (D.C. Cir. 1976) (reversing and remanding conviction on charges of conspiracy to obstruct justice and to defraud United States by
impeding grand jury investigation in connection with Watergate). Robert C. Mardian was a
co-defendant with John Mitchell, Maurice Stans, John Erhlichman, Robert Halderman, Kenneth Parkinson, and Gordon Strachan in the Watergate scandal.
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because I had been on television two and a half minutes on a few
nights when they had sat through six weeks of a trial; that was not
the psychology at work. It was clear to me that we were not affecting
that process.
As the years went on, it became clear to me that not only was it
true that television was not having the strong impact the judges and
some lawyers thought it was, but that it was becoming less a factor in
influencing viewers. I am persuaded that they are unaffected by the
kind of media publicity that has worried some of our judges so much
in the past and still worries some now.
The public's reaction to television-the reaction to what they see,
how it affects them psychologically, how much they remember, how
much they notice, how much they believe-is changing at a dizzying
pace. That has effects on our medium, and it has a continuing effect
on the public. There are obvious psychological reasons for this, if
you think just for a moment about the effect that television has on
the human mind. After all, it is really only within our lifetime that
humankind has had the capacity to present replications of real life
moving with sound through real motion pictures. Prior to that,
there were millions of years of evolution during which humans did
not have the capacity in any form to replicate events. We all know
that when humans developed the power to paint pictures, create
sculpture, create an image or impression of something that was not
really in view, art and sculpture became a central focus of human
culture. When, within the lifetime of plenty of people who are alive
today, moving pictures made it possible to create an image and have
it move in a realistic way, something started to happen inside people's heads. When television made it possible for the first time after
all these eons of evolution not only to see the image when it is not in
your presence, but also to see it at the same moment as it is happening, perhaps bigger than life or much smaller, in slow motion or
frozen in time, spinning around with a dizzying array of mental effects, something has happened. A process has been set in motion
psychologically. As a result, viewers become sated with the motion,
with the snap, with the effects and they want more. The networks,
the people who provide programming, respond by giving more snap
and motion because they are losing viewers. After a while the viewers want more, and on and on and on.
People have reacted to the changes in the medium in ways that
have been constantly shifting. The passion for movement inevitably
resulted in the couch potato's automatic switcher. Experts learned
that if the scene on the tube did not change rather quickly, the per-
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son watching would push the button and change the channel. As a
result, today on television there are far more changes on the screen
than there were in the old days, because networks are trying to deter
you from changing channels.
In the news division at CBS we were not insulated from this. We
were told to cover stories that gave us the opportunity to have a
number of different shots on the screen, sometimes regardless of
the news value of the story. We learned to do the so-called "walking
standup" where we walked and talked at the same time on the
screen. Whether we had any place to go or not, we walked and
talked. It was anything to get more movement and motion and to
deter viewers from reaching for the dreaded zapper. News copied
entertainment. The line between news and entertainment became
blurred. Programs presenting re-creations of real events became
controversial. On television news, it became unclear what was real
and what was not real, and a lot of viewers stopped caring an awful
lot.
It is not surprising that more than half the people surveyed recently did not know who Michael Dukakis' running mate was for
Vice President, and that for every person who could identify Chief
Justice William Rehnquist, two could identify Judge Wapner of the
People's Court. Now, I cannot draw any hard and fast conclusions
from all of this, because the experts have not adequately studied the
psychological ways that the public is receiving television.
But I do think that we should consider two implications for this
discussion. One is that lawyers and judges should guard against
basing important aspects of our legal system on outmoded assumptions about the media. About three years ago, several of us met with
ChiefJustice Rehnquist at the Supreme Court. I started banging his
ear about letting cameras in the courtroom. ChiefJustice Rehnquist
replied with a statement that could have come right out of Estes v.
Texas.II He talked about well, we cannot allow it because of the big
cameras, the bright lights, those cables that snake across the floor.
People could stumble and fall and all of that, and I told him that it is
not like that any more-television cameras of today are very small
and unobtrusive. One of the print reporters, who was sitting not far
from Chief Justice Rehnquist, had a little recorder in his lap. You
are all familiar with them-the book size recorders that reporters
use to verify quotes, but they are not permitted to be taken into the
Supreme Court chamber. The reporter held it up and said, "well,
11. 381 U.S. 532,535 (1965) (holding that defendant was deprived of fourteenth amendment due process rights by televising of his criminal trial).
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you know, this would be perfectly unobtrusive in there." The Chief
Justice looked at it and said, "Oh, is that one of those cameras?"
The reporter was so stunned he just held the recorder up and said,
"It is just a Sony."
And that was the end of that conversation. We went on to other
things. It may be that the Chief Justice was putting us on, but perhaps not. I do think in a matter as important as the selection of
jurors, it is unquestionably important that we should not let the decision to keep television out of the process be skewed by judges'
outmoded information and assumptions.
The second implication I think is important to this discussion is
that the public seems to be increasingly distracted and unimpressed
with what it sees on television, and earlier assumptions about the
prejudicial impact of television may be invalid. If television viewers
these days believe any of what they see, they can certainly be persuaded very quickly to cast aside what they see us do on television.
In their minds, fact and fiction are interlaced and much of it is superficial; they are changing channels so fast and the scene is changing so fast that I do not think television has the same grip on people
as information received in other ways.
There is one problem that I call the Perry Mason syndrome. A
lawyer who specializes in defending white collar defendants told me
what happened when he unexpectedly lost a case and his client was
convicted. He went up, just shattered, to a juror and asked, "What
happened?" The juror said, "When you cross-examined the prosecution's key witness, you did not get him to confess." The lawyer
realized that here is a real Perry Mason fan, and the real-life lawyer
had not measured up.
So there is a mixture of the real and the nonreal in television
viewers' minds. I do not think we know enough about it, but I do
think that old notions of the prejudicial effect of television on juries
should be viewed with great skepticism.
We are here to talk about the alternatives. I think the best approach is to acknowledge the changes that are swirling about the
media, and abandon the easy solution. It is easy to exclude jurors
who have seen something about the case on television. But, in view
of what we now know about the strange way people perceive what
they see, this easy approach is a mistake. Instead, we should pick
jurors who are intelligent enough to recognize the truth in a changing and very confusing world.
Thank you all very much and I will try to answer any questions
you might have.
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VOICE: Mr. Graham, you cite as evidence the fact that juries might
not be impressed by what they see on television by listing and cataloguing a group of highly visible defendants who had adverse pretrial publicity. Is there any evidence of the proposition you cite it
for, or is it, rather, evidence of the fact that you have done a pretty
good job at selecting impartial juries by excluding from jury service
those who have been exposed to pretrial publicity? The question is,
in the trials that you referred to, in those actual trials, did they allow
people who had seen your reporting to serve on the jury.
12
MR. GRAHAM: Yes, they did, particularly in the DeLorean case,
and obviously in the Watergate case.1 3 You could not pick a jury that
had not heard about Watergate. It was true in all those cases that,
generally, the method ofjury selection was the one that is described
here. If a person said yes, they knew about it, the judge went into
how much they knew about it.
In the DeLorean case, it has been suggested that the defense side
leaked the famous videotape to the media. I think that leak was accidental. But what happened was that the defense in the DeLorean
case knew that it had to show that the scene ofJohn DeLorean gloating over those bags of cocaine was a set-up, and to do that, they
needed intelligent jurors. They did not need any dummies to try
and make that defense work.
The interesting thing they did was, they picked two key jurors
with what you might call prosecutorial backgrounds. One of them
was a retired cop. The other, I believe, was a military man. They
were the classic authoritarian types that the defendant normally
would strike. The defense did not strike those jurors because what
they wanted to prove was, sure, you all saw that on the tape, but it
was the result of a manipulation by the Government. Those two
jurors went with them on that and were leaders of the jury that acquitted DeLorean.
12.
13.
DeLorean, 561 F. Supp. at 797.
See Mitchell, 372 F. Supp. at 1239.