Trial by media: The risks of differing jurisdictional approaches

4 January 2022 saw the conclusion to a trial that has gripped white-collar crime lawyers on both sides of the Atlantic – that of Elizabeth Holmes. Following a 15-week trial, jurors in the state of California returned guilty verdicts on four of the eleven counts on the indictment, convicting her of defrauding investors in her company, Theranos Inc (United States v Elizabeth A. Holmes, et al. (No. 18-CR-00258-EJD).

What’s the difference?

For British observers, the US trial largely proceeded in a familiar way to an English trial of similar facts. However, one area of striking difference between the two jurisdictions lay not in the law and procedure, but the manner of the media reporting. The American coverage of the trial has been elaborate and exhaustive, comprised of detailed newspaper reports on both the pre-trial and trial proceedings, as well as podcasts and other analytical long-form journalism. This is a curiosity for English lawyers, who are used to conducting criminal proceedings safe in the knowledge that media coverage will usually be restrained. Indeed, much of the reporting from the American media during the course of Holmes’ trial would undoubtedly be in contempt of court were it to be replicated during an English trial. This reflects the different legal landscape relating to trial reporting in the US as compared to the UK. These differences will assume ever greater practical significance as prosecuting white-collar crime increasingly becomes an international endeavour.

The two jurisdictions have fundamentally different starting points when it comes to the reporting of criminal trials. In England and Wales, the position is governed by the Contempt of Court Act 1981. This creates the “strict liability rule”, whereby it is a contempt of court to publish anything which “creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”, regardless of intent. The default position is therefore one of restriction. The exception to this restriction is an allowance for a “fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”.

By contrast, the starting point in the US is a permissive one, due to various constitutional protections in place. These protections uphold the principles of the freedom of speech and the freedom of the press under the First Amendment, which, while not completely without limitations, generally give reporters in America more leeway in what they report and how they cover ongoing criminal trials. There is no comparable strict liability rule on the media in the US, as the American system values the scrutiny of the press in criminal proceedings, and views the media’s criticisms as a tool to hold the justice system accountable. Thus, while counsel may move for an injunction to restrict the publication and dissemination of information in an effort to limit the media’s coverage of a criminal trial, because prior restraints generally are viewed as infringing on First Amendment rights, the bar is high for the success of such motions (Nebraska Press Association v Stuart, 427 U.S. 539 (1976), holding “the heavy burden imposed as a condition to securing a prior restraint was not met” and reversing lower court’s decision to uphold a gagging order on the media).

What difference does it make?

The different reporting environments created by the two regimes have the result that the everyday reporting of a trial differs hugely. In England and Wales, court reports will be mostly limited to a summary of the evidence given that day, often by way of verbatim quotes, from journalists keen not to accidentally fall on the wrong side of the strict liability rule by inserting comment. By contrast, in the US, as seen with the Theranos trial, court reporting while the trial is ongoing might include opinion pieces as to the strength of the evidence, or interviews with legal experts about the prospects of success of lines of defence. Faced with this heightened level of public engagement and debate, the US court will utilise alternative measures to protect the right to a fair trial, and it is not uncommon in high-profile cases for judges to instruct juries not to consume media related to the trial.

One area of particularly marked distinction between the jurisdictions is in the reporting of pre-trial rulings. In the UK, there is an automatic ban on reporting rulings made at pre-trial hearings until after the conclusion of the trial (s41 Criminal Procedure and Investigations Act 1996). This ban can only be disapplied by the judge dealing with the matter, and only if it is in the interests of justice to do so. By contrast, in the US, the press generally has a right under the First Amendment to report on pre-trial hearings. Judges can close pre-trial proceedings to the public upon request by the prosecution and defence, but would need to make special findings on the record that the closure was necessary to preserve “higher” or “overriding” values, and the order would need to be narrowly tailored to serve those higher or overriding values (Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)). In this respect, the two systems are mirror opposites: in England & Wales, there is a presumption of no pre-trial reporting unless the judge disapplies it, whereas in the US the presumption is in favour of pre-trial reporting unless the judge restricts it. This dichotomy has the effect that, whereas in England & Walesthe public usually remains unaware whether there have been pre-trial hearings (or indeed what the outcomes of those hearings were), in the US any attempt to restrict reporting can itself become the subject of intense reporting during the trial itself.

What effect can this have?

This was borne out in the Theranos trial, where a number of applications by Holmes’ lawyers to have evidence excluded from the trial were reported on at length. For example, in May of last year, Holmes’ lawyers moved to exclude evidence of customer complaints about the accuracy of blood testing results. The motion was denied by US District Court Judge Edward Davila, and the contents of both the motion and his ruling were widely reported on contemporaneously. In an English trial, the public would not know, at least not until the trial’s conclusion, that a defence team had argued to exclude evidence in this way. From the English perspective, there is a real risk that any juror aware of this fact might view the evidence when it came to be given in a different or more significant light. While in the American system, jurors who have been significantly influenced by pre-trial media coverage should be weeded out under voir dire examination, this type of information being in the public domain may have a more subtle impact on a juror’s state of mind than the straightforward biases caught under voir dire.

The limitations that a judge can order under English and Welsh law can in some circumstances go beyond comment and pre-trial rulings, to limit day to day reporting of the evidence being given at court (as noted above, this is usually an exception to the strict liability rule). Under section 4(2) of the Contempt of Court Act 1981: “the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.” Such postponement is most commonly ordered where there are sequential trials of different defendants relating to the same matter. In practice, where there are sequential trials, little if anything will be reported of the earlier trials until all trials have concluded. This is not the case in the US. Rather, the American system relies on protections – such as voir dire examination of jurors in the later trial to ascertain knowledge or bias based on reporting of the first trial, or through a change in venue – to combat the risk of unfairness.

This is notable in Theranos, where the trial of Holmes’ co-defendant, Ramesh Balwani, is due to start in mid-March. His trial will take place against a backdrop of Holmes’ headline-grabbing allegations made in evidence that she suffered a pattern of physical and psychological abuse at his hands at the time they were jointly running the company. These allegations are unlikely to form part of the prosecution case against Balwani, and plainly Holmes will not be present at his trial for cross-examination, but given the comprehensive reporting of her testimony, Balwani may well feel that this is something he will need to address in his trial. This is not a situation which a defendant in an English trial would likely ever have to face.

How could this affect trials?

These differences are not merely of academic interest. In a world where white-collar crime is increasingly global, and cases where there are parallel US and UK proceedings are on the rise, these different reporting standards have the potential to cause unfairness. This risk is particularly acute where a defendant faces trial in England and Wales and there is already extensive media coverage of a prior or concurrent trial into the same or similar facts in the US. That reporting may not have been permitted under English law, but it was perfectly lawful under the different rules in the US. 

A first example of how this might arise relates to the jury selection process. In the US, there are protections in place intended to afford a fair trial by jury despite the permissive reporting rules (e.g. voir dire, mentioned above). However, in the England and Wales, the process of jury selection is instead usually undertaken by way of a written questionnaire designed to weed out those who have been particularly exposed to media coverage (for example, in the high-profile 2014 trial into News International journalists accused of phone hacking, individuals who followed particular campaigning celebrities on social media were excluded from serving on the jury). Direct questioning by counsel (rather than the judge) is only permitted if there is already a prima facie case to support the basis for challenging a juror. The approach in England and Wales is therefore a less targeted and less detailed process than the American jury selection system, which typically utilises direct oral questioning of individual potential jurors by the judge and/or counsel in addition to pre-voir dire written questionnaires. Thus, in high-profile cases where there have been American trials with detailed global media coverage, the tools available to a Crown Court Judge in England and Wales to address the effects of that coverage on the subsequent UK trial are more limited. This presents a real risk of jurors serving in an English trial who have been exposed to a degree of reporting – for example, journalistic commentary on the strength of the defence being run by alleged accomplices of the defendant – that the English system is simply not designed to guard against.

A defendant faced with the imbalance of US reporting and a trial in England and Wales will therefore find themselves between a rock and a hard place. A judge in England and Wales would no doubt approve a detailed jury questionnaire seeking to exclude those who had closely followed the news. And the jury would be directed to ignore any media coverage they may have seen. But without a voir dire to examine how media coverage has actually affected their views, in reality defendants in  trials in England and Wales will find themselves less protected than those in the US.

A second example relates to the tools available to a defendant to defend themselves against detailed, adverse media coverage. The different reporting rules between the US, England and Wales mean that defence lawyers have a wholly different relationship with the media in the two jurisdictions. Because of the realities of trial by media in the US, defence attorneys in high-profile criminal cases in America may seek to use the press to their advantage by crafting a public relations strategy. This allows the defence the opportunity to publicly respond, in particular where there are misleading or inaccurate stories circulating (unless the defence is forced into silence by gagging orders). Indeed, it has become increasingly common for defence attorneys in the US to engage directly with the press to publicly deny or combat statements made by the prosecution. This can include full press interviews (such as that given by Balwani’s attorney, Jeff Coopersmith, to Nightline in 2019). By contrast, it is rare for defence lawyers in England and Wales to make any comment before, and certainly not during, a trial. Any comments given are limited to the fact that the client protests their innocence, without details. Therefore, in a transatlantic case, a defendant in England and Wales may face the intensity of the press coverage of an initial US trial, and perhaps co-defendants in the US seeking to minimise reputational damage, with likely no similar recourse with respect to engaging with the media through their lawyers. This only exacerbates the risks of jury selection noted above.

Conclusion

In an increasingly international prosecution landscape, it cannot be long before a defendant in a court in England and Wales finds themselves grappling with the adverse impact of American reporting arising in relation to a prior US criminal trial. Given the risks outlined, lawyers in England and Wales and the US should be aware of these differences in order to effectively educate and manage the expectations of their clients who may be required to stand trial on either or both sides of the Atlantic. What’s more, if this starts to become a regular issue, revisiting the way juries are selected, and the degree of detail with which they can be examined, may be a necessary consequence.

Maia Cohen-Lask is of Counsel with Corker Binning, and Dayna Chikamoto is an associate at Kramer Levin: corkerbinning.com; kramerlevin.com

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