Media Senser-ship

19 Apr

As a criminal defense attorney, I will be the first to express anxiety at the media covering any motions in one of my cases.  This is particularly true of what are known as motions in limine, AKA motions at the outset of trial, AKA stuff you don’t want the jury to hear about. There seems to be a general impression that any motion to limit what the jury hears is an attempt to hide the truth.  That has been the general tone of recent Amy Senser coverage.

There are two concerns that such coverage raises: First, corruption of the jury pool; Second,  mischaracterization of nuanced legal concepts by non-lawyer reporters. Let’s take for example the MPR lede:

MINNEAPOLIS — A Hennepin County judge has ruled that some questions about Amy Senser’s alcohol use may be raised during trial.

Judge Daniel Mabley ruled that while prosecutors will not be able to ask witnesses about Senser’s general alcohol use, they will be able to offer evidence of alcohol use by Senser on the night of Aug. 23, 2011. That’s when prosecutors say Senser drove her Mercedes-Benz SUV into a man who was fueling his car on the side of a freeway ramp, killing him.

 A passing knowledge of the rules of evidence would tell you that the general drunkenness evidence is prohibited because it is propensity evidence–she is usually drunk so she was probably drunk that day.  The evidence that she was drunk that day, however, goes directly to her state of mind as well as motive for failure to report (among other things).  Pretty straight forward stuff.
Now imagine you know you have jury duty next week.  You’ve told your friends, and you are a citizen of average uprightness.  This weekend you are out having a beer with friends, the subject of jury duty comes up.   The juiciness of the Senser story is too much to resist.  You talk about how criminal defense lawyers just try to hide evidence.  Like Senser–what a drunk.  And I bet the jury won’t get to hear anything about what really happened. Suddenly a jury pool is corrupted.  And why? This brings us to the next issue: non-lawyer legal reporters.
Let me first note that even if the defense had not made a written motion, the trial court would very likely have ruled in the same manner.  It might even be reversible error for it not to do so.  So what is the news value of such coverage? I would argue that there is little.  The right to a fair trial is right up there with freedom of the press in the Bill of Rights (notably behind the No Quartering of Troops amendment).  The mere rulings on evidentiary issues does little to inform the public and quite a bit to taint jury pools.
This is not to say that there is not legitimate purpose to report on evidentiary rulings or that such speech shouldn’t be considered protected speech.  However, merely reporting “judge says no drunkenness evidence” does little to advance debate.  If the story was about the weighing of prejudice to the defendant against relevance to the charge then it would be meaningful…and also probably go unread.  And that is why all court coverage will soon be done by Nancy Grace.

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