Judicial review is the power of the court to declare a law either by the federal or state government as repugnant to the Constitution and therefore is unlawful and void. All courts of law have the power of judicial review (Patrick, et al. , 2002). However, the Supreme Court is the final arbiter on issues whether laws or actions are unconstitutional. The assumptions on which judicial review is based are: 1) that the Constitution is the supreme law of the land; and, 2) that acts or laws which are repugnant to the Constitution are illegal, null and void (Patrick, et al. , 2002).
There are three separate and coordinate powers of government: legislative, executive, and judicial power which includes judicial review. Thus, the Court ruled in the case of Osborn v. Bank of the United States “The legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other . . . The executive department may constitutionally execute every law which the Legislative may constitutionally make, and the judicial department has the power of construing every such law” [385 U. S. 323(1803)].
The landmark case which established the power of the Supreme Court for judicial review is Marbury v. Madison where the Court ruled, “It is emphatically, the province and duty of the judicial department, to say what the law is. ” The federal judicial power, then, has the authority and capacity to interpret the Constitution and laws and treaties made under it; to apply the law to decisions about cases brought before the courts; and to declare laws unconstitutional if they do not conform to the supreme law, the U. S. Constitution” [5 U. S. (1 Cranch) 137, 2 L. Ed. 60 (1803)].
There appears to be a conflict between two legal rights-the freedom of the press under the First Amendment and the criminal defendant’s right to a fair trial under the Sixth Amendment to the U. S. Constitution. Most often commentaries in newspapers or any other form of media contain sensationalized or inflammatory information to attract readers and increase advertising revenues. Having the potential jurors read/hear false information would increase the likelihood of the juror making an initial opinion about the guilt of the defendant.
When this happens, the juror is said to be prejudiced and must be dismissed. The Federal Rules of Evidence specifically Rule 43 provides that evidence may be excluded at the trial ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. ” Before the 1990s, publicity before the trial was not as risky as today since it was limited only to newspapers (Standler 2004). According to Standler (2004), this can be avoided by transferring venue to another town or state.
However with the advent of nationwide media, it would be quite impossible to find a juror who has not been exposed to publicity of the case in the newspaper, television, or the internet. For instance, in 1966 Sam Sheppard obtained a new trial from the U. S. Supreme Court for pretrial publicity. He was acquitted later on for the murder of his wife which until this present day remains to be unresolved (Sheppard v. Maxwell, 384 U. S. 333). The relatively recent high profile case of O. J. Simpson, who was charged for the murder of his wife and her friend, has been covered intensely nationwide by television networks.
CNBC featured the pretrial phase with commentaries from a panel of lawyers every night and thereafter during trial by CNN through Greta van Susteren (Standler, 2004). During the pretrial, the 911 emergency calls with audio recording of the victim were aired. Polls were conducted before and after the airing of the recordings and it showed that before it was aired, 60% believed Simpson to be innocent. However, after the airing and playing of the tapes, 60% believed that he was guilty. The irony of it is the issue as to whether these recordings are to be admitted as evidence had not been resolved in court at that time.
The jurors had to be sequestered by the judge during the complete course of trial so as to shield them from any potential prejudice (Standler 2004). In an article entitled “Controlling Press and Radio Influence on Trials” of the Harvard Law Review, the following remedies were suggested to prevent pretrial publicity “1) voluntary action by press and radio; 2) tort cause of action; 3) change of venue; 4) new trial; 5) punishing the publication as contempt; and 6) preventing disclosure to the press (Anon.
1950). Additionally, the Court in the case of Sheppard directed trial judges to control their courtroom in order to avoid prejudicial publicity by sequestering the jurors and granting continuance until publicity ceases or is lessened. It is also suggested that searching voir dire to find impartial jurors must be made. They must be asked to set aside prejudicial information which they may have learned from journalist before the trial of the case [U. S. v. Yousef, 327 F3d 56, 155 (2nd Circuit 2003)].
Finally, gag orders may be issued against law enforcement officers, witnesses, counsels, defendant and court employees and officials from making public comment about the case. Search and Seizure The term ‘search’ is defined in a concurring opinion of Justice Harlan in terms of a test for purposes of the Fourth Amendment as “1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) and that expectation of privacy must be reasonable, in the sense that society in general would recognize it as such” (389 U.
S. 347; 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967). Subjective expectation of the privacy refers to proof that the person kept the evidence to ensure its privacy so that it would not be available to the general public. The second part of the test refers to an objective analysis of whether the expectation for privacy is reasonable. In the case of Soldal v.
Cook County the Supreme Court defined seizure as that which occurs when there is interference with a person’s interest in possessing an article/property by the law enforcement officer such as when the latter takes it away or removes the article/property from the person for purposes of using it as evidence of a crime [506 U. S. 56, 61, 113 S. Ct. 538, 543 (1992)]. There may also be a seizure of the person. The term ‘search’ connotes obtaining evidence or information from or about a person which are held to be private. Seizure connotes the taking of the article or person as evidence.
Both require a search warrant unless there exists a probable cause. The constitutional guarantee against unreasonable searches and seizures applies “not only to a search in combination with a seizure but also to a search without a seizure, as well as to a seizure without a search” [Tennessee v. Garner, 471 U. S. 1 (1985)].
Abraham, Henry J. (1993). The judicial process, New York: Oxford University Press. Anonymous (1950). Controlling press and radio influence on trials. Harvard Law Review, 63, pp. 840-853. Georgia v. South Carolina, 497 U. S. 376 (1990) Mayor v. Cooper, 6 Wall. (73 U. S. ) 247, 252 (1868)