Trial by Media
Maxwell Pereira

mfjpkamath@gmail.com

The Law Commission, whose recommendations have gone to the Government recently, addressed the malaise of ‘media trials’. Basically to give effect to the Supreme Court's views on the subject as enunciated in its 1969 judgment in AK Gopalan vs Noordeen. There was need to highlight the problem, because of growing media interference with the administration of justice. And judges, despite all their training and experience, could still be vulnerable to bias because of media projections.

It is the aggressive reportage of crime stories in recent times that prompted this move – to bar the media from reporting anything prejudicial to an accused right from the time he is arrested in the course of the investigation. The rationale, that competition within the media cannot be allowed to prejudge or prejudice the case against the accused by the time it goes to trial. In the existing situation contempt law in a sub-judice matter comes into play only after investigation is completed and the accused chargesheeted.

To further protect an accused from the "real risk of serious prejudice"... it is proposed also to empower high courts to pass orders of ‘postponement’ against any media organisation set to run a story related to the case in hand. The proposal cites examples with an illustrative list of categories of publications that could be prejudicial to fair trial; and reports discrediting witnesses or referring to the character of the accused, his previous convictions and his extra-judicial confessions.

There are different reasons why media attention is particularly intense surrounding a legal case: the first, that the crime itself is in some way sensational, by being horrific or involving the vulnerable; the second, that it involves a celebrity either as victim or accused.

In high publicity court cases the media is often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible, but means that regardless of the result of the trial the stigma of guilt would follow the accused for the rest of his life. The counter-argument is that the mob mentality exists independently of media which merely voices the opinions which the public already has.

The idea that popular media can have a strong influence on the legal process goes back to the advent of the printing press. But ‘Trial by media’ is a phrase popular since late 20th century – to describe the impact of newspaper coverage and television on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. In developed countries with an effective criminal justice delivery syatem there is a heated debate between those who support a largely uncensored free press and those who place a higher priority on an individual's right to privacy.

Down the ages there have been celebrities who have been victims of media trial. From UK’s Fatty Arbuckle in the 20th century, acquitted by courts but nevertheless his career and reputation lost due to the media coverage – to Michael Jackson in recent US, negatively affected by the media circus surrounding accusations of child abuse. Also the trial of OJ Simpson where the promotion of the media coverage in the public mind levelled above the status of the court…. And the trial of the Los Angeles police officers in the Rodney King incident where for the first time amateur video footage provided the key evidence of perceived guilt.

With our famous sting operations led by Tehlka, and those by other TV channels exposing corruption and female foeticide, we are now familiar with video cameras and their digital successors and CCTVs managing to catch on camera the perpetrator. The real problems for the legal system posed by these though are their inadmissibility as evidence in a court of law for technical reasons –inability to pinpoint exact time, and the potential to manipulate by editing.

Conversely, families and friends of convicted criminals have often successfully used the power of the media to reopen cases, where campaign by the media have resulted in successful appeals and release after dozens of years in prison.
 
In the 2004 prosecution of Sri Jayendra Saraswati Swamigal for murder, all the media coverage focussed in a manner suggestive of his guilt – but the Tamil Nadu and Andhra Pradesh High Courts and even the Supreme Court found no material evidence. More recently the acquittals in the murder cases of Priyadarshini Mattoo and Jessica Lal prompted the crusading media led by some prominent TV channels to ride the winds of popular sentiment, and end up claiming unabashedly that it is their effort to whip up passion and outrage that may yet bring justice to the victims.

Protagonists of ‘Right to Information’ are inclined to decry the recommendations of the Law Commission as an onslaught on ‘free speech’ – possibly without realizing the full import of the harmful effects on society and more particularly on 'human rights' that may result in denial of a 'fair trial'. There is the apprehension the amendment could deter the media from performing its watchdog function of exposing real time any collusion between the police and the accused.

For some the argument that media hype prejudges the case doesn't really hold water -- for the simple reason that the media is performing its fundamental role of conveying information to the public. They feel the media has every right to express its view regarding the chances of involvement of an accused on the basis of prima facie evidence, essential to not let the accused distort facts using his influence and connections. Nothing unethical in media putting in extra efforts to keep track of the trial – especially considering the high chances of distorting of facts, bribing the court and law enforcement officials, pressurizing witnesses to change statements, etc being the order of the day.

25.09.2006: Copyright © Copy Right © Maxwell Pereira: 3725 Sec-23, Gurgaon-122002. You can interact with the author at http:// www.maxwellperira.com and maxpk@vsnl.com

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