The Defendant v. the Press

Many of the nation's editors and broadcasters balked last February when the American Bar Association recommended a tough code to limit the flow of information to reporters in criminal cases. Some agreed that there was a need to keep cases from being tried in the press, but the general feeling was that the committee that wrote the rules, headed by Massachusetts Justice Paul Reardon, had gone too far. CBS President Frank Stanton, for one, complained that the A.B.A. code was "strewn with land mines of coercion and booby traps of suppression."

Now, an even more august legal body has cleared the minefield a bit. The Judicial Conference of the U.S., an organization of federal judges, has just adopted its own recommendations, which attempt to discourage publicity that might influence a jury and result in an unfair trial but, unlike the A.B.A. code, do not attempt to define any standards for the news media or police working beyond the confines of the courtroom. Instead, they rely strictly on a judge's power to discipline those actually under his judicial supervision. The new rules, worked out by a committee headed by U.S. Court of Appeals Judge Irving Kaufman of New York, call on judges to forbid bailiffs, clerks and other court personnel to give out information on a case unless it is part of the public record. They also urge that each court carefully define the "environs" of the courtroom where photographers and TV cameramen may not take pictures. Like the A.B.A. code, the federal rules would prohibit lawyers and prosecutors from divulging a confession or an accused man's past record, or making other statements that might result in an unfair trial. But the Kaufman rules do not include the three most controversial provisions of the A.B.A. code: 1) exclusion, under some circumstances, of newsmen from preliminary hearings and other hearings held outside the presence of the jury, 2) extension to policemen of the curbs covering lawyers, and 3) recommendation that judges bring contempt-of-court citations against newsmen who publish material "willfully designed" to influence a trial's outcome.

Call for Restraint. The press objected most strenuously to the last provision, which can be interpreted as giving powers of censorship to a judge. The Kaufman committee preferred not to include such a rule, since the U.S. Supreme Court has yet to decide whether or not judges have the right to use their contempt powers in this way. But the committee called on the news media to exercise self-restraint, "so that the courts will not have to consider the imposition of direct controls."

Editors, members of the bar and judges in some states have already worked out their own local guidelines, but most are still looking for standards to apply in state courts. The Kaufman committee's recommendations are likely to become part of the rules in every federal court in the nation. They are also likely to have a big influence on the codes ultimately adopted in each state.

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