Charles Nesson, What You Have Said in the Dark: The Evolution of Media in the Courtroom and the New Challenges of Containing the Jury's Information Space, 24 St. Thomas L. Rev. 383 (2012)
The trial system is in a form of crisis. Recently, the United States Supreme Court effectively recognized that we no longer have a jury system. Instead, we have a plea bargaining system with the remote possibility of a jury trial at the very tail end of that system. Given the pervasiveness of sensational news stories, the option of settlement may appear more attractive to a litigant because it avoids the public display that often accompanies high-profile trials. This also serves a benefit to nervous judges who, without the stress of a trial, may avoid the onslaught of media pressure for court documents, comments regarding the case, or permission to observe certain proceedings. Finally, settling outside of trial also places bargaining chips in the hands of defendants who might face weak odds for trial.
Litigants' desire to avoid trial is likely bolstered by the prevalence of media that now spreads mass amounts of information and misinformation to consumers and jurors at an alarming rate through use of smart phones, laptops, and tablets. Provocative images and half-truths of high-profile trials reach out of television screens and into the bedrooms of incensed viewers. Bias in the media's focus of civil trial coverage, which arguably favors plaintiffs' civil judgments as opposed to defense's victories, may also scare litigants from the prospect of going to trial. As a consequence of increased media coverage, the idea of a contained and secure jury information space is increasingly threatened.