When All Eyes Are Watching: Trial Characteristics and Practices in Notorious Trials

Article excerpt

The term "notorious trial" brings to mind images of celebrity parties or witnesses (and sometimes celebrity lawyers and even judges), heinous crimes, unusual legal issues or factual situations, and unrelenting media coverage in the press, on television and radio, and even online. But notorious trials come in many shapes and sizes. Most often we think of criminal trials, but civil cases such as the Vioxx product liability trials, the Wal-Mart employment discrimination case, and even complex shareholder suits in business fraud cases qualify as notorious. The term connotes national notoriety, but local or regional notoriety is also quite common, especially in political corruption cases or cases involving significant local or regional employers. For present purposes, the simplest definition of a notorious trial is simply one that is widely known and discussed.1

Nationally, notorious trials are very rare. Approximately 150,000 jury trials are conducted each year in state and federal courts, but only a dozen or so receive sustained national coverage. But because they are so closely watched, how courts manage them has a disproportionate impact on public trust and confidence in the justice system. Ironically, because they are so closely watched, notorious trials also pose a tremendous challenge for judges, court administrators, and lawyers to ensure actual fairness for the parties. Extensive pretrial publicity shapes public opinion, potentially jeopardizing the ability of prospective jurors to be fair and impartial. Notorious trials also complicate the logistics of trial practice by placing unusual demands on courtroom seats for spectators, on courthouse security to maintain order, and on others trying to carry out business in other parts of the courthouse.

In part because of their relative scarcity and the uniqueness of each new notorious trial, it is difficult to generalize the effects of trial notoriety. However, a recent study by the National Center for State Courts Center for Jury Studies reveals information about the prevalence of notorious trials and their impact on trial procedures and practices. The State-of-the-States Survey of Jury Improvement Efforts collected trial reports from nearly 12,000 jury trials conducted in state and federal courts in all 50 states and the District of Columbia.2 The vast majority of trials took place between 2002 and 2006.

In the survey, judges and lawyers were asked to describe their most recent jury trial, including the type of case, the location of the trial, and the procedures employed during voir dire and trial. One survey question asked whether the respondent's most recent jury trial was a notorious or high profile trial. Respondents identified a surprising 718 trials (6.2 percent) in the dataset as notorious. This article discusses the characteristics that are most often associated with those notorious trials and the trial practices most often employed by judges and lawyers in notorious trials.

Trial characteristics

As a preliminary matter, it is clear that trial notoriety does not strike randomly across the country. Rather, the rate at which judges and lawyers reported notorious trials varied tremendously from state to state, and not necessarily in predictable ways. (see Table 1). Overall, the frequency of notorious trials ranged from zero in Delaware to 17 percent in Wyoming. California and New York, two states that frequenthy appear in the press as the location of many notorious trials, had rates just at or only slightly higher than the national average (6.1% and 6.7%, respectively).

There did not appear to be any relationship between the notorious trial rate and either the rates of jury trials per 100,000 population or other plausible statewide factors (e.g., state population, geographic proximity). Nor were notorious trials significantly more prevalent in federal courts as compared to state courts. But some trial characteristics did correlate with notoriety rates. …