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Should Witnesses Be Allowed to Sell Their Stories Before the Trial? : Yes: There is insufficient cause to override the First Amendment and ban the selling of stories for profit.

Erwin Chemerinsky is Legion Lex professor of law at the USC Law Center

The California Legislature is now considering a bill that would make it illegal for a witness to a crime to sell his or her story to the media until after the trial is completed. Although this measure is inspired by the noble ideal of preserving a fair trial, it interferes with freedom of speech and should be adopted and ultimately upheld as constitutional only if it can be shown that the ban really is necessary. At this point, there is little evidence that witnesses selling their stories pose a threat to the fair administration of justice.

The bill, introduced by Assembly Speaker Willie Brown, obviously is a response to several instances in which witnesses in the O.J. Simpson case received payments from the tabloid press. In one instance, the prosecution apparently abandoned the use of a witness at the grand jury after she received money from the television show “Hard Copy” to relate her story.

Proponents of the bill argue that witnesses who sell their stories to the media will lack credibility before a jury. Guilty individuals might be acquitted if key prosecution witnesses are not believed. Conversely, there is the chance that an innocent individual might be convicted if important defense witnesses are compromised by selling their stories to the press.

These are very important concerns, but in analyzing them it is essential to recognize that a law prohibiting witnesses from selling their stories restricts freedom of speech. An analogy can be drawn to a 1991 Supreme Court decision invalidating a New York law that prohibited crime perpetrators from profiting by selling stories. The so-called Son of Sam law also was motivated by important concerns: a widely shared view that it was wrong for a crime perpetrator to profit from the crime and a belief that such money should be given to crime victims.

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The Supreme Court unanimously declared the New York law unconstitutional. The court explained that the law restricted speech based on its content. A crime perpetrator could sell a story to the media and profit unless the content of the story was about the crime. The court held that such a restriction of speech based on its content would be allowed only if it was necessary to achieve a compelling interest. The court concluded that the New York law failed to meet this test.

Similarly, the proposed California law would limit witnesses’ speech based on content: A witness can sell a story to the media before the trial about anything except the crime that was seen. Moreover, the public is informed when witnesses talk to the press, and the proposed law could lead to less information being conveyed if fewer witnesses speak to the media. The legal issue, therefore, is whether the law really is needed to achieve the compelling goal of ensuring a fair trial.

At this stage, there simply is no evidence that such a bill is necessary. The proponents assume that a witness who sells a story will lack credibility before a jury. Yet this is hardly obvious because countless witnesses retain credibility even when they are profiting enormously from their testimony. For example, in criminal cases, accomplices and participants in the crime often make a deal where they get immunity from prosecution or a great reduction in sentence in exchange for testifying. Inevitably, defense attorneys use this to impeach such witnesses. Nonetheless, juries often believe witnesses who testify with immunity, and thousands of individuals are in jail as a result of such testimony. Another example is expert witnesses who get paid to testify and yet are routinely believed by juries even though they, too, have a financial incentive to testify in a certain manner.

There is no reason why the jury will disbelieve a witness just because money was received for the story, especially if there are other indications that the story is reliable. For instance, if the witness told the same story to the police before selling it to the press, the jury is unlikely to think that the story was fabricated or embellished for profit.

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Also, jurors often will sympathize with a witness who took money from the media to describe what was seen or heard. Many jurors will think that they probably would have done the same thing if they were in the position to make a large sum of money by describing what they have already told the police and will say in court.

Perhaps proponents of the bill can demonstrate that payments from the media causes witnesses who otherwise would be highly credible to lose that credibility. But up until now, the support for the bill is based on conjecture and is fueled by a dislike for the tabloid press and its checkbook journalism. The First Amendment demands that restrictions on speech be justified by more than a hypothesized harm and distaste for some of the media’s practices.


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