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?
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.
