New technology, the media and criminal trials – Let’s talk about it


Here is an interesting article folks that I found that comes at a time when the media and the internet are colliding with the long-held protocols of the old school legal system of the last century, who needs to catch up with who I wonder?

Where are we headed with blogs like this? the instant twitter commentary from courtrooms, the insatiable thirst for the information, good bad or ugly. You all know I am a believer of  Major Trials being telecast to those who want to and indeed need to watch them. Just like some have an interest in Question Time in Parliament and some do not. make it available, what is there to hide?

By Peter Gregory

July 06 2012

Are we now behind the times?

On an overseas crime website was the personal and criminal history of a man known to the Victorian public.

At the time, he was before the courts on a serious charge. The trial judge had warned jurors not to look up the internet, because they were to return a verdict only on the evidence they saw or heard in the courtroom.

Put simply, the judge’s warning was part of delivering a fair trial. If accused of crime, you are judged by a jury of your peers.

They base their decision on the material presented to them in the courtroom. Almost always, that means no reference to the previous convictions of the person on trial, or neighbourhood gossip about a case, or the wise pronouncements of media commentators.

The legal system’s assumption is that jurors, not being trained as lawyers, will find it harder to put aside prejudicial information. If you were a juror on a rape trial, and learned that the accused person had been convicted (separately) of rape six months earlier, what would you think about this case?

“Guilty,” said one student when this question was posed during a seminar some years ago. That is why jury members are told not to follow media reports, do their own research, or talk to their families about the case. They are also instructed to be wary of social media, like Twitter or Facebook.

“If your family is like mine, everyone will have an expert opinion,” one judge would say at the start of a Supreme Court trial.

“You can blame me. If they ask about the evidence, you can say the judge told you that you are not allowed to discuss it.”

Journalists would get very nervous about their court stories, fearing they might be fined or worse if they revealed information that the courts believed was likely to be prejudicial.

In one case, five media organisations were fined a collective $670,000 after reporting that a man arrested over three New South Wales murders in 1989 had confessed. The reports were likely to interfere with the administration of justice, it was found.

These were simpler times when a big worry for publishers was the potential to mix up the conservative court story written for local audiences with a more comprehensive account prepared for interstate editions.

If the Victorian jury was protected from prejudice, all was well. If a stuff-up occurred, media lawyers were sent to court to apologise.

More than 20 years later, safety and conservatism sound like foreign concepts.

The crime website which featured the Victorian suspect was not the worst by any means. True, its advertisements for criminal-related merchandise, including DVDs, calendars and magazines, was distracting, but his segment was a fairly sober summary of his court appearances, material from interviews and legal debate about his future.

Numerous other websites talk about criminals and killers. Some are moderate and feature court decisions. Others appear to follow the “hang ‘em high” school, practised with or without a trial.

Still wary of the legal process, mainstream media websites monitor or ban comments being made about court-related stories.

Inflammatory remarks can raise difficulties for many institutions which have embraced social media and the internet to engage with the public.

Bond University professor Mark Pearson recently analysed problems with the Queensland Police Facebook site, which was flooded with hard-nosed commentary following a high-profile arrest.
“I fear it will not be long before a savvy defence lawyer seizes the opportunity to use such prejudicial commentary as grounds for appeal, perhaps resulting in a trial being aborted at great public expense or even a verdict quashed,” he told The Australian newspaper.

So, what can the courts do?

Last month, the New South Wales Criminal Court of Appeal allowed a media challenge to court orders that would have forced news websites to remove thousands of archived stories about a conspiracy to murder trial. The Sydney Morning Herald said the court upheld the argument that the orders were futile because “vast swathes of information on the internet are essentially beyond the court’s control”.

“It is something of an irony that the (media organisations)…are, on one view, the only people against whom an order could properly have been made,” the court said in its published judgment.

While NSW law might let prosecuting authorities seek suppression orders over prejudicial material published online by local media, that permission could not validly apply to the world at large.

Suppression orders might cover material on internet sites beyond the control or awareness of local publishers.

Imagine the SMH finding all the international crime websites, and persuading them to take down some of their murder summaries because an Australian prosecutor was worried about them.

A Law Council of Australia committee, of which this writer is a member, outlined some other problems in a submission made to the Federal Government.

The media and communications committee said information could not be effectively censored or removed once it was available online. Material was often republished or cached on other sites. Monitoring archives for past publications would be costly and a significant exercise, and in many cases would have little practical effect, the committee argued.

Removing mainstream material might also bump the relevant information contained on less reputable websites up the search engine list for determined researchers.

“Suppression and non-publication orders that that operate to censor or remove historical reports by mainstream media organisations can lead to (the other) websites being elevated in lists of search results carried out, for instance, on the names of accused persons, and thus perversely increase the risk of prejudice to forthcoming trials,” the committee said.

If censoring the media does not work, the focus returns to juries. Jurors can be fined for looking up the internet during trials, if they decide to ignore judges’ warnings.

On its website, the Judicial College of Victoria has quoted court decisions describing jury members as “robust and responsible”, not “fragile and prone to prejudice”. But it warns that the availability of internet databases posed new problems for protecting jurors from prejudicial information.

Could that mean sequestering the jury – staying at hotels, not at home – for the whole trial, to keep it away from outside influences? Would that happen at all trials, or just the ones that attracted massive media attention?

One of the court decisions suggested keeping juries together during the proceedings would protect the open court principle and avoid prejudice. The accommodation costs in a long hearing, and the associated pressure to avoid mistrials, would be very likely to create their own problems.

What are your thoughts readers?

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18 thoughts on “New technology, the media and criminal trials – Let’s talk about it

  1. Personally i think its a contradiction, much like most laws including the entire system come to think of it,
    The system contradicts itself over and over, there is no such thing as innocent until proven guilty, in fact I very much doubt there ever was, its simply a case of guilty and hope to be able to find enough evidence to weigh in your favor to prove your innocence.
    The public has already made up its mind before your case is seen in any court room by any judge much less stood trail.
    To me it would seem that it’s OK for them to use the internet for what they choose, there is no such thing anymore as court journalists therefore this qualification is no longer required anybody with a twitter, Facebook, or other social networking membership can simply write what their assumption is, and spread the word, hells bells look at u tube and the popularity it has when people want to find out the latest news on the latest court hearings.
    In fact who turns to read the news on any of the news networks when we have this wonderful social networking thing going on? you seem to find a lot more out from face book or twitter than you will from any 5pm news show.
    There is and never has been any justice within our system, we may be told we have the right to remain silent, however choose we choose to exercise this right, we are then classed as breaking another law, by not co operating with police, or interfering with a police investigation or some slap happy charge the man in blue may choose to use, instantly deeming us as guilty for exercising what the police state to be our right to remain silent.
    The whole thing is a sham.

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  2. Having once served on a jury i found the defence lawyer continually asked questions that the judge kept telling him he could not ask and the judge told us disregard what had been asked , however the seed was sown.

    The judge took a break and summoned both the defence and prosecution to his chambers , when the court resumed i can only guess what had transpired but the defence took a new angle.

    The judge summed up the case virtually telling us he thought the defendant was guilty as charged , we thought otherwise and gave a not guilty verdict.

    The look on the judges face was quite stern as he dismissed us.

    BTW , it was a case where the defendant was accused of stealing goods from his employer , the defence showed reciepts for the goods however the prosecution told us they were falseified and that the defence witness who agreed he had sold the goods was lying , in my mind( and the other jurors) simply telling us that the goods were stolen without absolute proof did not cut the mustard.

    A Foreman from the company told us the same goods were missing from there storeroom over a 12 month period, however he agreed they ‘could have’ been purchased elsewere.

    This was in a Victorian Provincial County Court and was a one day trial so certainly no high profile case . Prior to attending i had decided if i was chosen i’d only go by what was told to us .

    One thing i found tough is that the jury cant ask questions except on points of law.

    To this day i’m not certain we made the right decision as i read a year or so later the same man was found guilty of an almost identical crime , but you can only reach a decision with what you are told.

    Televising of high profile cases would give the world an insight to the case but as with Parliement it’s not like you see in movies.

    I do remember it was very hard to hear the witness’s speak , there were only a couple but they were very nervous , which i thought made them easy prey for the prosecutor.

    On this site the BC case has had us all on the edge of our seats especially during the bail hearing but i have noted many people sway one way then the other as snippets of info come to light telling me that most will make a decision based on what facts are told , i’ve also noted where a source is not forthcoming we tend to put it aside.

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  3. Angel O’Fire

    I tend to agree with you about the innocent until proven guilty. If you are innocent of committing a crime for which you have been charged for, you have to fight to prove your innocence. So in other words, you’re guilty until you can prove otherwise.

    The public court of opinion can impact on cases, influence a jury in their decision as can a persons priors if they have any, so who do we blame, the media for reporting a crime and the public forming an opinion of a person or persons or, do we blame social media networks and forums like this?

    There is only 1 thing that really annoys me about judge and jury. The law contradicts some things it stands for. I’m not a religious person(retired Catholic) however, the bible says, thou shalt not judge yet, a jury panel if formed and they must “judge” a person and find them either guilty or not guilty. Thats where the contradiction is. Yes they have evidence, in a lot of cases its only circumstantial evidence however, a jury must still judge the accused.

    As for social networking, where would we be without it? We can’t rely wholly and soley on the media to report things with 100% accuracy. We can watch the news on 1 tv channel and they report on something, we then flick across to another channel and they are reporting on the same thing but with a different view of events.

    And yes, it really is a sham for a better want of words.

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  4. The notion of innocent until proven guilty has ended up becoming misunderstood by well meaning persons who aren’t capable of critical thinking and insecure over their abilities wanting to sound popular and politically correct. It is equally preyed upon this notion by underlyingly depraved persons, or the amoral or defence lawyers wanting to win.The fact that a person has been charged and passed through the stage police, prosecutors and courts believe there is enough substance to charge with a crime and even hold them in detention indicates the person is highly probably not innocent of being involved with the crime they are charged for, but are open to whether an examination of the evidence can determine their guilt sufficiently and if the circumstances prove mitigating or end up eliminating the correctness of charges laid. Not being found guilty may be an outcome of defense posing a stronger case than the prosecution were able to as jurists are constrained to make their findings based on the evidence presented regardless of their gut feelings. In a minority of cases not guilty means innocence totally of the charges laid, other times it just means the defendant cannot be found guilty on the evidence, but not innocent.Aside from a few crazy killers desperate for infamy or memento desired by a rare serial killing sex offender there won’t be a visual clear recording of the crime perpetrated , especially in homicides and murders to have the proof with utterly no doubt relying on sound circumstantial evidence and physical evidence results. I may believe Baden-Clay to be the perpetrator of his wife’s death, that he had a planned intent to commit murder, but on the night in question I’m more than open to the notion he had not planned to kill her then, but reacted in rapid rage as it led to a messy poorly handled execution of her killing and management concealing evidence.I’m also open to the notion that while murder looked like the best solution to Baden-Clay in the calm of the day he may have not been able to bring himself to actually carry it out continually procrastinating such an act and Ms McHugh created the pressure to sustain the concept, at least to her.Manslaughter of a spouse could have him out in ten years.
    What I need to ask is why is our press not under the same standards as the Us where the freedom of the press is supported by their constitution?
    I’ve lost the article that was a study on the behavior of the press in pending legal cases that found that it was responsible mostly and that it did not have an overtly influencing impact on how people responded if becoming a juror in well publicised cases. Likewise they found jury performance went by the trial and not by any social media or jurists earlier hypotheses on the case. If anything the greater noteriety impacted on jurists being overly concientious and literal in taking instructions. Courts and legal proceedings were meant to be open to public scrutiny and the whole justice process from crime to other facts ought to be known by the public as the victims, their kin and kith, investigators and local networks do have the wider picture, the context and need to see what is relayed in the court processes to see how adequately this is done by legal persons. How crime is dealt with, offending against society is what we rely on to protect peoples rights to personal safety and security of our property. The emotional involvement, the compassion or outrage are a positive sign that despite the magnitude and diversity of our society that we still share a feeling of community and empathy , the reflection of connectedness. These cases also bring home the communities potential to prevent maximal harm by seeing when minding one’s own buisness rather than reporting cost lives.
    What was funny was one defense big shot who prior to being on Casey Anthony’s case had said he had resevations about the kind of people so out of the mainstream that they were truly ignorant of publicised cases being on a jury implying they were rather odd and unpredictable for both sides to cope with in how they react to information.Sequestering puts people in an unreal situation so they end up playing so much and self comforting their mind is not fully on the job . Such happened in the Casey Anthoony case as leaked later.
    When media are being fined it’s because the justice and corrections systems aren’t mamaging their problems effectively and want to conceal this.

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  5. ‘Familiarity breeds contempt’ seems to be afflicting my thoughts of late. Trials are taking too long. Solicitors and others within the legal fraternity are draining fortunes out of all those concerned as is the parasitic media. The legal process is undergoing unprecedented change, is in a state of flux. People’s lives and futures are a form of entertainment. True justice is rarely witnessed, imo

    We need a swifter process in my opinion and I take on board in advance all those who’d disagree, some of them vehemently and particularly those, I guess, who plan to make a better than average living from the joke the Law’s become and is seen to be

    In China, reportedly, they now have mobile execution vans. Yes, can see the inherent dangers in that. But we can find the God particle, we can put objects into space and they will transmit information for 35 years. Surely, then, we can devise instruments which will cut through what is an antiquated and some would say ‘revered’ legal process which is seemingly so at odds with our technological era ?

    In the olden-days, coppers would thump villains around the ear when the lies began flowing. Crooks are crooks – they lie, they try it on. Most of them have been petty crooks all their lives. When they’re treated to kid-glove courtesy, they laugh. Then, encouraged by what they deem stupidity on the part of their questioners and a ‘soft’ system, they see how much more they can get away with – and often, to their astonishment, the system lets them get away with blue-murder. Some deterent, some incentive to spitting out the truth and no ‘lol’ to accompany this

    Lie-detectors aren’t permissible as evidence in court. They’re a good indicator, it’s claimed, but cannot be relied upon to provide conclusive proof. Ok, so divert some of the trillions being spent elsewhere and *devise* methods of determining definitive proof of guilt/innocence. Sure, it will put a stop to the legal leeches, but hey, the sloppy gravy-train that is the legal-business had to end sooner or later and you guys have had a hell of a run

    Devise instrumentation which will short-cut the current, lumbering joke of a system. Grab your Persons of Interest, your Suspects — and subject them to an impersonal, unbiased barrage of physiological tests (within the one chamber) which measure heart-rate, pupil-dilation, sweat, nervous tics, muscle contractions, raised or lowered pulse, brain-chemistry, etc. etc. Check the read-out. Show it to the person of interest/suspect — ‘ Well, you were definitely lying when you responded to Questions B, D, F. If you cannot, right now, explain WHY you lied about your proximity to the victim, you’re two-grades closer to the execution van in the courtyard out there. You have two minutes to explain — you’ll be allowed one more attempt in the Truth or Lie Chamber — then it’s into the short-corridor death-row behind you. You’ll be dead by noon if you don’t quit the BS and tell the truth. Your two minutes begin now ….

    I’m not alone in distrusting to considerable degree most of those who earn far more than they’re worth, imo, in the so-called justice-industry. That industry is a joke, a circus, a festering cess-pit which in all probability delivers less justice than would the above-hypothesised Truth or Lie Chamber

    GBC refuses to talk. The BC’s refuse to answer questions. That’s a joke ! We don’t have time for this rubbish. Fifty years ago they didn’t *waste* time for such rubbish — nor did they have today’s two to three year back-logs re: trials. The legal industry didn’t get to waffle about, draining clients of their live’s earnings, NOR was it given leave to dump dangerous criminals, killers, paedophiles and other scum back on the streets. The legal industry back then didn’t waste billions of public money on ‘counsellors’ and case-workers, lunatics claiming to be psychologists/psychiatrists. Bad guys were NOT encouraged to regard themselves as ‘victims’. Because honestly, I’m not interested in hearing any more of the waffling excuses. There have always been killers and robbers and unless they get tough and begin weeding them out before birth, then we always will be plagued by killers and other crims. They form a fairly stable statistics and ‘criminologists’ point to 10% of the population who will — just like the naughty-kids at school — drain away everyone’s time, energy and money at the same time they destroy a predictable percentage of other people’s lives. They need to be eradicated. Rehabilitation is a proven farce and waste of time, energy and money. All the way through, the useless ten percent are detrimental to the majority

    So I’d donate to any serving police officer or even member of the legal-industry who delivered a few good thumps to the heads of GBC and NBC and told them to stop the BS and start talking right now, or else. And I really believe we should outsource our legal processes to Asia, along with everything else. People act in their own self-interest. Confronted by no-nonsense Chinese Death Squads and their mobile execution-vans, crims would sing like canaries. We would see an end to ‘refusals to talk or cooperate’ and we wouldn’t be subjected to the expense of life-ers in privatised prisons

    For those outraged by the above, consider this: we live, we die — ALL of us, good and bad alike. Allison’s dead. Nothing will bring her back. Her killer, *IF* convicted, will spend less than 20 years in a relatively comfortable environment, all provided. That’s ‘justice’ ? At the cost to the public of hundreds of millions of dollars and thousands of hours ? No, that’s not my idea of ‘justice’. And over it all parades a procession of corrupt police, corrupt judges, corrupt legal system, paid-witnesses, informers and the gamut of crime which underlies and in fact supports, an inefficient, lost-its-way, random-result ‘law’ which caters to a public which has NOT changed since rule of the jungle days insofar as that public wants blood, wants someone to suffer in exchange for a life or fortune lost — wants the spectacle, the performance, the farce of a happy-ending known in these cases as ‘justice’

    Scrap the current system and replace it with something more in line with 2012. In the Roman era, people’s lives were decided by a count of up-thumbs versus down-thumbs. Today’s social media has returned us, ironically, to the Roman circus. Maybe we should quit supporting today’s outmoded justice INDUSTRY and replace it with … yes, up and down thumbs. Democratic. Provides entertainment and a sense of involvement. We remain a village with villager mentalities. Evolution never was. Today’s village spans the globe, courtesy of social media and technology. Why fight it ? Confrontation by the angry-mobs, albeit via social-media, very probably has a FAR greater chance of uncovering truths and delivering justice. It’s something which will get criminals talking to save their lives in a way our current soft-gloves approach could ever hope to do

    imo

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  6. Mrs Scott, please tell me that you don;t believe that what you see on social networking IS 100% accuracy. I have seen more rumour, gossip and downright slander on a certain Facebook page in the last few weeks than I would ever have been likely to see in my whole 47 years.

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  7. WOW..don’t know what else to say..all of you had such interesting..VERY INTERESTING reading…thumbs up to you all !!!

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  8. Wow BB, that’s a fair enough call :) I think you summed it up.

    How unfortunate are we, as humans, to have still not evolved to have respect and honour for each other…….on so many levels.

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  9. Good morning NorthernCowboy

    I haven’t said that any 1 particular page is 100% accurate. What I am saying however is, social networking can provide us with more accuracy than a media outlet.

    I have seen the best and worst of rumours and gossip on websleuths, FB and even Robbo’s website. Its social networking that attracts locals from specific areas and they are the people that can provide us with some insight into what has happened ie; ABC’s murder. Some reports have been accurate, some have been downright derogatory and sickening.

    You make mention of FB reporting on rumours and gossip which was slanderous. Okay great, thats 1 website, not all social networking sites are the same. Websleuths is a perfect example of a forum thats not very well moderated, infact, its a dangerous website. People take information from there and then post the same rubbish in places like FB and Aussie criminals because they believe what they read to be true and correct and was the gospel truth.

    I did make mention of the media not reporting with 100% accuracy. The media have been known to distort the facts, same as some social networking outlets.

    So what do you suggest we do NorthernCowboy? Do we completely disregard all media and social networking and only believe what we see? Do we completely ignore the wonderful technology provided to us to keep up to speed with what’s happening in the world?

    Find me a better way of keeping informed and up to date and I will take my hat off to you.

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  10. Look the way our system is set up is with the underpinning view that it is better to let a guilty person go free than to ever lock up an innoncent person and I think I am ok with that

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  11. The bottom line is that if you have been charged with a serious crime and public opinion is against you chances are you will get convicted well before the trial especially now with the internet etc

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    • Hi Columbo , I’m sorry but i disagree ….

      Lets take the current GBC case , if you were called upon to be a juror would you have him guilty prior ?

      I think he’s guilty however i’m sure i could sit and listen to the evidence given and adjuicate his guilt or innocence based on that evidence and that alone .

      You always come across as a sensible person and i’d believe you’d do the same.

      Then there is the Max Sica case ..

      I know only a little of his trial but based on what i’ve read I have doubts on his guilt , now before someone jumps down my throat , i’ve judged that on only reading what’s available on the Net and i’ve not read it all , so i’m basing my thoughts on limited knowledge.

      I think most people called for jury duty would try their best and cast all prior knowledge aside, I guess i have one advantage in that i’ve had to deal with the media , especially the print media which has taught me to only believe the price and date on the dailys.

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  12. Hi all,
    Great thread Rob and thanks to everyone for contributing.It is hard to gauge what role main stream media and ‘social media’ will play in the future of high profile cases and how they will be dealt with.What comes with this technology that we have embraced(internet,Face Book,Twitter etc) is also the advancement in forensic testing,be it medical/scientific/psycho or as we see with a current case – the use of forensic analysis to track telecommunications – phone,internet & VOIP.
    My light side tells me that justice will be served with evidence and due process.My dark side tells me that one thing worse than committing a heinous crime is to be convicted of it if innocent.
    Who knows?
    I would like to talk to my lawyer now…Is there a pay phone in the Lounge?(I don’t have 50c and the screws took my iphone)

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  13. Good one Banjo.
    I couldn’t sit on Gerbils jury. After seeing his disgraceful performance out the front of Nigey’s brick veneer manor, I couldn’t listen to a single word in his favour and believe it.

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  14. @Katihutloose.If you were selected on what jury?huh?who?what? when? why???hmm..never heard of it ;)

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  15. Hi Katie , one thing is for sure and certain , that being even the most foolish of defence teams would never let GBC take the stand , he’d sink himself in 10 seconds flat.

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  16. Nothing happening today, prosecution has until 20th August to hand everything over to the defense, next date will be 3rd September. The longer it takes the more NBC will be worried he will be implicated.

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