ANNOTATION

TRIAL BY PUBLICITY
Introduction
The legal aspects of trial by publicity have not been fully
considered so far by courts in the Philippines. With the exception
of Cruz v. Salva, 116 Phil. 1151, (1959), where the Supreme
Court censured the Fiscal of Pasay City for unduly allowing wide
publicity and sensationalism given to an investigation of a
criminal case, and the case now under annotation (Martelino, et
al. vs. Alejandro, et al., G.R. L-30894, March 25, 1970) and a few
contempt cases involving newspaper publications by parties or
lawyer on pending statements to the press court cases (In Re
Gomez, 43 Phil. 376; In Re Kelley, 35 Phil. 944), Philippine
Courts have not been confronted with issues involving “trial by
publicity.”
Eventually, the question of prejudicial publicity will be raised in
our courts with the advent of sensational cases of national
importance. The demands of the public for “justice” as shown in
the student demonstrations and rallies extensively publicized in
newspapers, radio and television might give more occasion for
courts to rule on “prejudicial publicity.”
The problem of trial by publicity has been considered very
extensively in the United States and England due to the
technological advances publicizing court litigations calculated to
incite public opinion (John De Pemberton, Jr., Executive Director,
American Civil Liberties Union, “Constitutional Problem in
Restraint of the Mass Media,” 43 Notre Dame Latvyer, 1967, p.
881; For detailed discussion on the subject, see also Grant B.
Cooper, “The Rationale For the A.B.A. Recommendations”; “Open
meetings: The Press Fights for the Right to Know,” 75 Harv. L.
Rev. 1199 (1962), Thomas Shaffer, “Direct Restraint on the
Press”; Sam Ragan, “The A.B.A. Recommendations: A
Newspaperman’s Critique”; Elmer Lower, “The First Amendment
Under Attack: A Defense of the People’s Right to Know”; William
Raichel “If There is to be an Abridgment of Pre-Trial
Communication. Should it be Coupled with an Expansion of Trial
Coverage by Radio and Television?; 42 Notre Dame Lawyer, No. 6
(1967); Cowen, “Prejudicial Publicity and the Fair Trial” 41 Ind.
Law Journal 69 (1965); “Note: The Case Against Trial by
Newspaper” 12 De Paul L. Rev. 167 (1963).

Mixed Inquisitorial and Accusatorial Systems in the

Philippines.—
The examination of defendants and other persons before the filing
of the complaint or information may be inquisitorial (People vs.
Badilla, 48 Phil. 718). During the trial on the merits, the accused
is entitled to confront his accusers and to cross-examine them.
No Jury Trial in the Philippines.—
The right trial by the jury practiced in the United States has not
been extended in the Philippines. (Dorr vs. United States, 195
U.S. 138, 49 L. ed. 132). According to the U.S. Supreme Court,
trial by jury is not so fundamental a right as to be incapable of
substitution with another system adequate and efficient enough
to protect the rights of the individual.
The Philippine Constitution provides that no person shall be
deprived of life, liberty or property without due process of law,
nor shall any person be denied equal protection of the law (Sec.
1, par. 1, Article III, Constitution of the Philippines).
No person shall be held to answer for a criminal offense without
due process of law (Sec. 1, No. 15, Article III, Constitution of the
Philippines).
Sec. 1, No. 17, Article III, Id. also refers to the right to speedy
and public trial of the accused.
Court Martial Proceedings in the Philippines Similar to a
Jury Trial.—
The court martial, as its history and development demonstrate, is
a blend of the jury system and a one-judge (non-jury) judicial
system. In common law jurisdictions, an accused is tried by his
peers. In one-judge (non-jury) jurisdictions, the accused is tried
by a lone judicial arbiter. In a court martial trial, the entire panel
of officers who constitute the court martial is judge and jury
(Concurring opinion of Justice Fred Ruiz Castro in Santiago vs.
Alikpala, L-25133, September 28, 1968, 25 SCRA 367).
The ruling with respect to the jury trial may be applicable to the
non-jury system wherein trial judge is a trial of both the facts and
the law.

The Right of the Accused to a Fair and Impartial Trial .—

Due Process of Law
It is indispensable requirement that the court trying the case
must be competent and impartial. If the court is prejudiced, no
fair and impartial trial could be given the accused (Tumey vs.
Ohio, 273 U.S. 510). See also Banco Espanol vs. Palanca, 37 Phil.
927; U.S. vs. Samio, 3 Phil. 691, on requirements of due process.
The right of the accused to a fair and impartial trial has not been
expressed in Rule 115 on the rights of the accused. However,
Sec. 1, Rule 135 of the Revised Rules of Court provides that
justice be impartially administered. A fair and impartial trial
means a trial before an impartial judge in an atmosphere of
judicial calm (State vs. Goseet, 76 ALR 1299).
Impartiality means the logical derivative of the creation of the
trial as the means by which past events are reconstituted for the
purpose of rendering judgment. In theory, this concept requires
judgment to be rendered solely on the basis of the evidence
produced at the trial. The theory of the system is that the
conclusion to be reached in the case will be induced only by
evidence and argument in open court, and not by any outside
influence, whether of private talk or public print (Paterson vs.
Colorado, 205 U.S. 454, [1907]).
Prejudice or bias on the part of the trial judge may constitute a
denial of equal protection of the law (Osborne vs. Purdome, 250
S.W. 2nd. 159).
Equal protection is afforded in a criminal trial where the trial is
conducted fairly and impartially in the same manner and under
the same procedure as all other people are tried within the state
(State vs. Gill, 172 So. 412).
Under its constitutional guarantee of due process of law every
person accused of crime is entitled to a fair and impartial trial in
which his legal rights are protected and respected; that is, a trial
of facts, in accordance with the law and the evidence before an
unbiased tribunal, in the atmosphere of judicial calm, free from
harmful error and from any extraneous influence that might be to
his prejudice.
This right to a fair trial exists, regardless of his criminal record, of
his character his station in life, the nature of the crime, the
existence of public sentiment in regard thereto.
Since society represented by the state is the real party in interest
in prosecuting the crime, the trial court is concerned not merely
with the rights and interests of the individual alone, but equally
with those of the citizens as a whole.
The presiding judge must see that, so far as possible, the trial
results in a finding of the truth. He must supervise and control
the proceedings fairly and impartially. He must confine the trial
within the issues properly triable, that the material facts are fairly
presented, and must keep from the jury extraneous matters likely
to mislead them (23 C.J.S. 274; Garcia vs. Executive Secretary,
L-19748, Sept. 13, 1962; 6 SCRA 1; Gutierrez vs. Judge Santos,
L-15824, May 30, 1961, 2 SCRA 249; People vs. Castaneda, 63
Phil. 480).
The theory of the law is that the juror who has formed an opinion
cannot be impartial (Reynolds vs. U.S., 98 U.S. 145, [1878]).
In practice, however, the theory is not always followed. In the
case of Holt vs. U.S. (218 U.S. 245, [1910]), it has been held
that the juror need not be disqualified for holding an opinion of
such strength that evidence would be required to remove it. If
the opinion would yield to the evidence produced at the trial, that
was sufficient (Note: “The Efficacy of Change of Venue in
Protecting a Defendant’s Right to an Impartial Jury” 42 Notre
Dame Laivyer, p. 925).
Remedies to Protect Right to an Impartial Trial.—
Among the devices available to the parties in the U.S. are (1)
continuance, (2) change of the judge, (3) voire dire, (4)
sequestration of the jury, (5) change of venue, and (6) mistrial
(See Note: The Efficacy of Change of Venue in Protecting a
Defendant’s Right to an Impartial Jury” 42 Notre Dame Lawyer,
1967, page 926).
(1) Continuance, see Delaney vs. U.S., 199 F. 2d. 107. 1952;
Deck vs. U.S., 298 F. 2d. 622; U.S. vs. Hoffa, 156 F. Supp. 495,
(1957). Continuance is availed of to protect the defendant from
the effects of community prejudice and to ameliorate the
situation where the defendant is justifiably unprepared for trial.
Judges usually consider it, however, as mere a dilatory tactic.
(People vs. Brooks, 67 Ill. 2d. 479, 214 N.E. 2d. 498 (ct. app.
1966).
Section 2, Rule 119, Revised Rules of Court provides for
continuance of cases.
The prosecution may apply for continuance in order that it may
properly prepare for trial or if it appears that a fair and impartial
trial may not be secured (Clark, Criminal Procedure, p. 410), U.S.
vs. Baluyot, 40 Phil. 385.
Application for continuances are addressed to the sound
discretion of the court. In this respect, it may be said that the
discretion which the trial court exercises must be judicial and not
arbitrary, It is the guardian of the rights of the accused as well as
those of the people at large, and should not unduly force him to
trial, nor for light causes jeopardize the rights or interests of the
public.
Since the Court trying the case is from personal observation
familiar to all attendant circumstances, and has the best
opportunity of forming a correct opinion upon the case presented,
the presumption will be in favor of his action (U.S. vs. Ramirez,
89 Phil. 738).
Change of Venue or Disqualification of Judge.—
See Rule 137, Section 1, Revised Rules of Court for
disqualification of judges.
Self Disqualification of Judge, see par. 2, Sec. 1, Rule 137.
Where the disqualification of the judge was sought on the ground
that he was prejudice or biased in the issue of the case, the
Supreme Court held that mere bias and prejudice does not fall
under any of the grounds enumerated in the Rules of Court. If the
judge cannot decide impartially because of such bias then the
aggrieved party may file a complaint under Rule 137 of the
Revised Rules of Court (Talisay Silay Company vs. Teodoro, G.R.
L-4679 & L-4674, 1952). People vs. Lopez, 78 Phil. 286. Next in
importance to the duty of rendering a righteous judgment is that
of doing it in such a manner as will beget no suspicion of the
fairness and integrity of a judge. In general litigants are entitled
to have a hearing and determination by an impartial tribunal free
from bias, prejudice and interest, (48 C.J.S. 1039; Tumey vs.
Ohio. 273 U.S. 410).

Several states in the United States provide change of judge or

venue upon showing that there is such excitement or prejudice in
the minds of the inhabitants of the community that he can not
have a fair and impartial trial (State vs. Turner, 193 Kan. 189;
392 P. 2d. 863 [1964]; People vs. Anderson, 350 Ill, 603, 183
N.E. 588 [1932]).
There is presumption that an accused shall receive an impartial
jury in the place where he is entitled. He has the burden of
rebutting this presumption (Farrow vs. Commonwealth, 197 (Va.
353, 89 S.E. 2d. 312 [1955]).
Prejudicial newspaper comments may be a ground in support of a
change of venue. Courts, however, have usually denied said
motion based only on the ground if it has been shown that the
newspaper publicity did not refer to the defendant in a partieular
way or it was only a factual narration or the publicity was not
intended to influence the jury (State vs. Odom, 369 S.W. 2d.
173, 180 [Mo. 1963], certiorari, denied; 375 U.S. 993, [1944];
US. vs. Malinsky, 20 F.R.D. 300 [1959]; People vs. Bery, 219
N.E. 2nd. 563, Ill. 1966; State vs. Brown, 31 Wash. 2d. 475, 62
N.E. 2d. 742, [1954]).
Courts have even denied the motion of change of venue even if
newspaper accounts have the tendency to excite prejudice or
make detailed accounts (Singer vs. State, 109 So. 2d. Fla.,
[1959]; State vs. Williamson, 245 Iowa 949; 62 N.W. 2d. 742,
[1954]; U.S. vs. Moran, 236 F. 2d. 361, certiorari, denied, 352
U.S. 909, [1956]; State vs. Truman, 124 Vt. 295, 204 A. 2d. 93,
[1964]).
The reasoning of the courts in these cases appear to be that
although publicity is a necessary prerequisite to a general
prejudicial sentiment towards the defendant, said sentiment is
not always a reliable indication of a prejudicial atmosphere.
Otherwise, a sensational case cosild never come to trial. In these
days of newspaper enterprise and universal education, every case
of public interest is almost as a matter of necessity be brought to
the attention of all intelligent people in the vicinity, and scarcely
anyone can be found among those best fitted for a juror who has
not read or heard of it, and who has not seen sorae impression or
some opinion with respect to its merits (Reynolds vs. U.S., 98
U.S. 145, [1878]).
Moreover, usually intelligent people do not consider newspaper
publicity reliable and its effect, if any, is ephemeral (People vs.
Sollazo, 106 N.Y.S. 2d. 600 [Sup. ct 1951]).
Decisions Favoring Change of Venue.—
(1)Prejudicial statements coming from official sources (U.S. vs.
Florio, 13 F.R.D. 296, [1952]). Example was the statement from
the New York Crime Commission referring to the defendant as a
“mobster” and containing accounts of the defendant’s past
criminal acts. (See U.S. vs. Bufalino, 285 F. Supp. 106 [1959]).
See, however, State vs. Thompson, 265 Minn. 385, 123 N.W. 2d.
378 (1963) “where the court found evidence objectionable.
(2)Publication of inadmissible evidence.
See U.S. ex. rel Bloeth vs. Denno, 313 F. 2d. 364, certiorari
denied, 372 U.S. 978 (1963).
(3)Density of the publicity or of unusual variety or intensity.
Where the publicity was widespread or the case was likely to
attract widespread interest see U.S. vs. Florio, supra; People vs.
Sandgrew, 109 Misc. 810, 85 N.Y.S. 2d. 753 (Sup. Ct. 1947).
However, the accused must indicate the district as he thinks is
free from prejudice and where he expects to get an impartial trial
(U.S. vs. Bando, 244 F. 2d. 833, cert, denied, 355 U.S. 844
[1957]).
The reasoning behind these cases is that no useful purpose will
be served in changing the venue when the publicity is widespread
and that courts must do their business even though conditions
are not at their best (U.S. vs. Dennis, 183 F. 2d. 201, affirmed
341 U.S. 494, [1951]).
Certainly we must spare no effort to secure an impartial panel.
But those who have in fact committed a crime cannot secure
immunity because it is possible that the jurors who try them may
nob be exempt from the general feelings prevalent in the place
where they live. (United States vs. Dennis, supra.)
(4)Organized campaigns designed to prejudice defendants. (U.S.
vs. Hillman, 42 Wash. 615, 85 Pac. 63, [1906]. See, however,
Wood vs. United States, 357 F. 2d. 425 [1966]).
(5)Heinous Crimes. (People vs. Allen, 413 Ill. 69, 107 N.E. 2d.
826 [1952]. Example is a murder and dismembering the body of
the victim. (People vs. Pfanschmidt, 262 Ill. 411, 104 N.E. 804
[1904]).

86, [1923], Curuthers vs. Reed, 102 F. 2d. 938, certiorari denied,
307 U.S. 643, [1939]).
The defendant has a right to be free from physical violence or
threat (People vs. Arthur, 314 Ill. 296, 145 N.E. 413 [1924];
State vs. Dryman, 269 P. 2d. 796 Mont. [1954]).
See, however, contra (Shepherd vs. State, 46 So. 2d. 880 Fla.
[1950]).
Some cases suggest that the defendant is being protected from
prejudice indicated by the mob (Seals vs. State, 208 Miss, 236,
44 So. 2d. 61 [1950]; People vs. McKay, 37 Cal 2d. 792, 286 P.
2d. 165 [1951]).

The American Bar Association Report on Standards of

Fair Trial and Free Press.—
See Part III, see. 3.1 (c) which provides that a motion for change
of venue or continuance maybe granted, if it is determined that a
potentially prejudicial material, if disseminated, a fair trial cannot
be had. “This determination maybe based on such evidence as
qualified public opinion surveys or opinion testimony offered by
individuals, or on the court’s own evaluation of the nature,
frequency, and timing of the material involved. A showing of
actual prejudice shall not be required,” 54 A.B.A.J. (1968), p.
347.
The A.B.A. committee further recommended, among other things,
that the following be withheld from public knowledge:

1Prior criminal records of an accused, or any statements as to his

character or reputation;
2The contents of any confession or statement by a defendant.
3The performance or results of any tests.
4.The identity, testimony, or credibility of witnesses.
5.The probability that the accused might plead guilty to the
offense charged or to a lesser offense.
The committee further recommended that every police and law
enforcement agency should be prohibited from deliberately
posing persons in custody for photographers, or allowing them to
be interviewed, when the accused, after being informed of his
rights to consult a lawyer, requests this in writing. The said
committee also suggested a ban on extra judicial statements by
witnesses before and dur~ in trial. (A.B.A. Report on Police-Press
Relations, p. 100.) For comments on the recommendations, see
Elmer Lower, “The First Amendment under Attack: A defense of
the People’s Right to Know” 42 Notre Dame Lawyer, p. 896.

The A.B.A. Report on Fair Trial and Free Press is to direct

outgrowth of the Warren Commission’s study of the assassination
of President Kennedy. Analyzing the way the news media
projected the arrest of Lee Harvey Oswald, the Warren
Commission declared that the events at Dallas on November 22-
24 is a dramatic affirmation of the need to bring about a proper
balance between the right of the public to be kept informed and
the rights of the individual to a fair and impartial trial (Report of
the President’s Commission on the Assassination of President
Kennedy, p. 242 [1964]).

U.S. Supreme Court Rulings on Change of Venue Due to

Partiality
Reynolds vs. U.S., 88 U.S. 145 [1878]
United States vs. Wood, 299 U.S. 123 (1936)
Adams vs. United States, ex. rel.
McCann, 317 U.S. 269 (1942)
See Irwin vs. Dowd, 366 U.S. 717 (1961) where the United
States Supreme Court set aside for the first time a state
conviction on the ground that newspaper publicity prevented a
fair trial. See also Shepard vs. Florida, 341 U.S. 50 (1951) where
the court reversed conviction mainly on racial discrimination and
not necessarily due to prejudicial atmosphere surrounding the
trial.
In Strobble vs. California, 343 U.S. 181 (1952) although there
had been highly inflammatory newspaper publicity, the court
refused to grant relief as there had been no showing that any
community prejudice ever existed or in anyway affected the jury.
In Marshall vs. United States, 360 U.S. 310 (1959), evidence
concerning defendant’s prior criminal records, although ruled as
inadmissible, was read by the jurors in the newspapers. The
Supreme Court reversed the conviction and said that the
prejudice to the defendant is almost certain to be as great when
that evidence reaches the jury throughout news accounts.
In Rideau vs. Louisiana, 373 U.S. 723 (1963), the defendant’s
film confession was televised on three occasions. Despite the
admission of the jurors that they have seen the telecast, the trial
judge ruled that they can render an impartial verdict. The U.S.
Supreme Court reversed the ruling and held that there was denial
of due process of law in refusing the request for a change of
venue.
In Estes vs. Texas, 381 U.S. 532 (1965), the Court held that a
televised criminal trial was a denial of due process.
In Sheppard vs. Maxwell, 384 U.S. 333 (1966), the Supreme
Court observed that newsmen took over practically the entire
courtroom, hounding most of the participants, explicitly the
defendant Sheppard. The Court assured that the prejudicial
publicity reached the member of the jury. The court then
admonished that if publicity during the proceedings threatened
the fairness of the trial, a new trial be ordered. The courts must
take such steps by rule and regulation that will protect the
processes from prejudicial outside interference.—JUDGE JORGE
COQUIA
Notes.—Power of civil courts to interfere with or review decisions
of courts-martial.—As a general rule, civil courts will not interfere
with the functioning of a military tribunal duly convened and set
up and acting within the scope of its jurisdiction (Kuroda vs.
Jalandoni, L-2662, March 26, 1949, 46 O.G. 4282). The judgment
of a court-martial, rendered upon a subject within its limited
jurisdiction is regarded as conclusive and as such may not be
reviewed or set aside by civil courts (U. S. vs. Cooley, 3 Phil 58;
Garcia vs. U. S., 41 Phil. 961; Grafton vs. U. S., 11 Phil. 776).
But a judgment rendered by a military court which is not legally
constituted is treated not only as voidable but void and subject to
collateral attack in the civil courts (Oguir vs. Director of Prisons,
80 Phil. 401). TRIAL BY PUBLICITY, 32 SCRA 122, March 25,
1970