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State v. Biegenwald3/5/1987
t was the potential or anticipated prejudice from adverse publicity -- that would result from press coverage of pretrial proceedings -- that was the focus of the Court's determination. In State v. Bey, 96 N.J. 625 (1984), a capital murder prosecution, the Court concluded that there was sufficient adverse pretrial publicity to jeopardize defendant's constitutional right to a fair and impartial jury. We ruled that the trial court erred in not conducting a hearing to determine, under the Williams standard, whether there was a "realistic likelihood" of prejudice from this publicity that would require a change of venue or other extraordinary corrective measures.
Courts have considered several factors in determining whether the prejudicial effects of pretrial publicity are sufficient to undermine the right to a fair jury trial. These are: (1) the nature and extent of publicity -- whether factual, inflammatory or referring to matters which are prejudicial and inadmissible at trial; (2) the length of time between the dissemination of the publicity and the trial; (3) the care exercised and the difficulty encountered in selecting a jury; (4) the prospective and final jurors' familiarity with prejudicial, inadmissible information; (5) the resultant effect on the prospective and final jurors' ability to deliberate impartially; (6) the defendant's use of peremptory challenges to correct for publicity; (7) the prosecution's responsibility
for the publicity; (8) the nature of the crime; (9) the population from which the venire is drawn; (10) the efficacy of a change of venue; and (11) precautionary or curative measures taken by the trial court to alleviate the effects of publicity. See Annotation, Pretrial Publicity in Criminal Cases As Ground For Change of Venue, 33 A.L.R. 3d 17, 33, 38-78 (1970) (Supp. 1986) (collecting cases); Ranney, Remedies for Prejudicial Publicity: A Brief Review, 21 Villa.L.Rev. 819, 829, 32 (1976); Note, Community Hostility and the Right to An Impartial Jury, 60 Colum.L.Rev. 349, 361-65 (1960). Such factors are illustrative of the circumstances that are relevant in determining whether the prejudicial effects of pretrial and trial publicity in a given case create the "realistic likelihood" that defendant could not otherwise obtain a trial by a fair and impartial jury. Consideration of the undisputed facts in this case, informed by such factors, leads to the conclusion that defendant's constitutional jury-trial right was undermined by this publicity.
As recounted, there was extensive prejudicial publicity about the defendant in newspapers distributed in Monmouth County during the spring and summer of 1983. When trial commenced in November, the publicity resumed and continued thereafter on a daily basis, while the jury remained unsequestered. The publicity was inflammatory and sensational rather than factual and objective. Particular prejudice inhered in newspaper articles that discussed several murders, in addition to the one for which defendant was being tried, and contained highly damaging and inadmissible information, such as the names, ages and locations of bodies of other murder victims. Further, the publicity was widespread and extensive; the same population that was exposed to the pretrial publicity constituted the source from which prospective jurors were drawn.
This publicity was fueled by the prosecutor's widely publicized personal comments regarding critical matters bearing not only on criminal guilt but on culpability as well; such as defendant's absence of motive. As a result, the crime charged appeared especially shocking and the impac
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