Examining the Opportunity for a Fair Trial when Media Attention is High

11/17/2008

Anyone who lives in or around Louisville, Kentucky has heard about the tragic events that caused catastrophic injuries to a young louisville girl at Kentucky Kingdom. Recently, a friend of mine asked my opinion about whether there was anything wrong with the publicity the case was receiving and could it have an impact on the fairness of the trial.  

Pre-Trial publicity is governed by rules published by the Supreme Court of Kentucky that govern the conduct of all lawyers practicing in Kentucky.  Specifically, pre-trial publicity is rule SCR 3.130(3.6).  In short, it provides that there should be a balancing act between the public's right to have information about a case and the party's right to a fair and impartial jury.

In conducting the balancing inquiry, a lawyer should not make any statement "if the lawyer knows, or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding."  There are severaly key phrases contained in that statement, including "substantial likelihood"  "materially" and "prejudicing."  While I won't go into a dissertation about the definition of these words, each one has a specific meaning  that must be applied to the statment, and must be done so from a prospective (not retrospective) view.

Also contained in the rule is a large section dealing with public statements that can always be made, even if the statements might have a substantial likelihood of materially prejudicing an adjudicative proceeding, including, but not limited to: 1) the general nature of a claim, 2) information contained in a public record, 3) that an investigation is in process, etc.; however, the exception most applicable to the Kentucky Kingdom case would be #6, "A warning of danger concerning the behavior of a person (or corporation), when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest..."

Here, the statements made by this young girl to the press, and in Washington D.C. at congressional hearings on amusement park safety have been "a warning of danger...of likelihood of subtantial harm to an individual or to the public interest."

Finally, because there hasn't been a trial date set, it would be difficult to argue there has been any likelihood of materially prejudicing  the trial.  Just my two cents.

Hans