The media reporting of judicial proceedings is generally accepted as supporting the principle that the administration of justice should be open to public scrutiny. This open justice principle is justified on the ground that if the administration of justice cannot be hidden from the public, this will provide: (1) a safeguard against judicial arbitrariness or idiosyncrasy and (2) the maintenance of the public's confidence in the administration of justice.FN1
While it is lawful to publish the bare facts of most court proceedings, subject to various statutory exceptions (eg adoption proceedings, sexual offences in NSW, the identity of matrimonial parties) or specific court orders, the common law rule of sub judice seeks to restrict the publication of material which has the tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a court of justice.FN2
The sub judice rule exists primarily to protect those individuals participating in legal proceedings from being influenced by public discussion, most often in the print and electronic media. There is thus an obvious relationship between the sub judice rule and the rules of evidence. The sub judice rule supports the rules of evidence by attempting to ensure that inadmissible evidence, and material which while admissible is not admitted into evidence, is excluded from the jury.FN3
This essay considers the question whether jury members are affected by media reports, and to what extent, by examining recent research in both Australia and overseas.
It is interesting to note that in 1986, Adrian Deamer said: "[Prof] Henry Mayer and I (who assisted the [Australian Law Reform] Commission) couldn't find any Australian research on the matter [of how publicity affects juries]".FN4
Indeed, the first reference to touch on the impact of publicity on juries was the Commission's November 1986 Research Paper No 4.FN5
The Commission's Research Paper No 4FN6 canvassed the literature on the psychology of beliefs, the role of memory, affective and cognitive recall and the American empirical studies of the effect of publicity on mock juries.FN7
The paper concluded that the media are highly influential in the process of belief formation and are often responsible for people's first impressions. The paper noted that for a variety of reasons associated with dissonance theory and the self- generating nature of beliefs, first beliefs often display an aversion to change. As the information which is most readily available to the media comes through the policing authorities and the prosecution, there is a very real danger that the bias will be against the accused. The danger was therefore that the media would present and re-present the same side of the litigation, not only forming people's first impressions but reinforcing and revivifying them.FN8
The impact of prejudicial publicity, however, is affected by the role which memory plays as well as the remedial measures designed to counteract the effect. Research on the operation of memory indicates that unless the information is encoded in long-term memory by reason of particular interest or involvement by the individual, the rate of forgetting is quick and takes place most rapidly in the first few days after the absorption of the information. The likelihood of the information being forgotten by the time of the trial was affected by the degree of repetition, the form of sensationalised or other treatment of the information in the time between the media coverage and the trial.FN9
In its 1987 Report on Contempt,FN10 the Australian Law Reform Commission noted that the impact of the media on the minds of the public at large is a matter of considerable controversy but conceded that there was evidence that people rely heavily on the media for their knowledge and understanding of events and for impressions and perceptions which form the basis of their own value-judgments.
While television appeared to be the most influential medium,FN11 telephone interviews of people who had just watched a television news program suggested that their recall of the content was surprisingly scanty.FN12 This was in accordance with the finding by psychologists that people's memories lose track of a considerable amount of information comparatively quickly, with the speed at which information is forgotten subsequently slowing.FN13 The Commission considered that this pattern of "memory curve" conformed with the theory that what is chiefly retained in the human memory out of large quantities of information received from the media is general impressions and value-judgments, rather than precise and detailed statements of fact. Whatever view the media presented of crime and criminals was therefore likely to be highly influential. Impressions once created may form the basis for an individual's understanding of the relevant subject matter or form an attitude towards a particular person, with the individual likely to organise later information or impressions to conform with the originally adopted attitude.FN14
Repetition of material similar to that which provided the basis for the originally adopted attitude or opinion acts as reinforcement, although subsequent information which is markedly different may obliterate or distort the recollection of information gathered by way of first impression.FN15
The Commission also conceded that the effect of the evidence and the judge's instructions will not necessarily outweigh the effect of any publicity relating to the trial. If the case is one in which there has been a great deal of publicity, the judge will often instruct the jury to ignore the publicity and rely on the evidence alone. While juries would normally do as instructed, the Commission noted that this cannot always be assumed and gave the example of an Australian case where a jury, on being told that their case had been discussed in the press and that they should ignore those reports, made a special effort to find out what had been said in the press and discuss its significance among themselves.FN16 Thus, in true human style, an instruction to behave in a particular way may range from more-or-less obedience through qualified obedience to outright disobedience.
Quite apart from the possibilities of counter reaction by the jury, the Commission also considered whether an instruction to put a piece of information out of one's mind and to concentrate solely on the evidence relating to the same topic could ever be wholly effective and noted that psychological findings as to whether this is genuinely possible are equivocal.FN17
In conclusion, the Commission acknowledged that it was impossible to scientifically prove that juries are influenced by media publicity, to quantify the extent to which any such influence occurs, or to prove that juries are completely unsusceptible to media influence. However, research did suggest that where the question of guilt or innocence on the evidence is finely balanced, juries may be influenced by certain types of extraneous publicity, even allowing for the effect of a judicial direction to ignore it. There is only a risk of influence, never a certainty.
The NSW Law Reform Commission considered the empirical research regarding the impact of publicity on juries in its Discussion Paper 43.FN18 The Commission noted the findings of the Australian Law Reform Commission's 1987 Report on Contempt,FN19 canvassed subsequent American empirical studies, and concluded that it was not possible to decide definitively one way or the other as to whether juries were susceptible to prejudicial media reporting.FN20 The main reasons for this conclusion were that the studies to date fell almost equally into two opposing camps in the conclusions they reached; their outcomes were often ambiguous; and their methodology had a number of limitations.FN21
The principal focus of this studyFN22 was the strength and ultimate significance of the publicity surrounding relatively high-profile criminal trials on the relevant juries. The study concentrated mainly on "specific" publicity (ie media stories dealing with the specific trial or accused) although "generic" publicity (ie media stories dealing with some broad theme or issue raised in the trial) was also taken into account.FN23
The methodologyFN24 of the study was to interview the jurors,FN25 the judges and the principal counsel on both sides after the trial was concluded. Despite the comprehensive anonymity promised to jurors - neither they nor the trial in which they participated would be identified - only 36% agreed to a telephone interview, compared with 88% of judges, 100% of prosecution counsel and 90% of defence counsel. In all 41 criminal trials were selected between mid-1997 and mid-2000.
In 75% (30) of the 40 trials in which the jury delivered a verdict, the judge and both counsel considered that it was justified on the evidence. Of great significance was the fact that in 40% (12) of those trials, the jury's verdict was delivered in the face of media publicity which was urging or suggesting a different outcome. In some of these trials, it appeared that while the perceptions of individual jurors may have been influenced by publicity, the verdict was not. The study drew the inference that this suggested that the process of discussing the evidence in order to arrive at a unanimous verdict overrode any influence exerted by publicity. In 20% (8) of the 40 trials, doubts about the verdict were expressed by counsel on the losing side, but not by opposing counsel or the judge.FN26
In 7.5% (3) of the 40 trials, it was found that the verdict was likely to have been significantly influenced by publicity rather than being based on the evidence. In one of these, the jury's decision to acquit was considered by the judge and both counsel not to be justified by the evidence. In another, the judge and prosecution counsel - but not defence counsel - thought that the verdict of guilty was acceptable. This case was the closest that any of the trials came to being a wrongful conviction brought about by publicity.FN27 In the third trial, the verdict was considered safe by the judge and both counsel. In the last two trials, the relevant publicity included factual material of a prejudicial nature that had not been disclosed in the trial.
The study concluded that, by and large, the juries in the study were reasonably successful in resisting influence from publicity.FN28 The reasons suggested for why juries were successful included:FN29
On the other hand, although there have been numerous American empirical research and experiments into the impact of prejudicial publicity on juries, the conclusions of that research fall almost equally into two opposing camps, are often ambiguous and suffer from methodology limitations.FN31
The New Zealand Law Commission's Preliminary Paper 37FN32 contained an empirical research study of 48 jury trials during 1998. So far as practicable, the study included all the "high profile" jury trials that occurred in the sample period, so as to maximise the collection of information on the impact of publicity upon jurors.
The research concluded that jurors were only rarely aware of sufficient details of pretrial publicity to enable them to form any bias or prejudgment. When they were, for the most part they reported that they consciously made an effort to put that aside and focus on the evidence alone; and when they did not, other jurors in the process of collective deliberations generally overrode any individual bias or predetermination. While some jurors were more affected by media coverage during the trial, there was no evidence that any of the collective deliberations of the juries in the sample were ultimately driven or even influenced by this. It was impossible to know whether this was because the jury took the judge's instructions to heart or because they thought that it was unfair or inappropriate to take media publicity into account in any event.FN33
The New Zealand Law Commission's Report 69FN34 devoted a chapter to the media and their influence on juries.
The Newspaper Publishers' Association submitted that the degree of concern expressed by Courts about the effect of publicity on juries cannot be sustained and that the modern jury is able to discharge its duty by ignoring publicity as directed by the judge. The Commission disagreed with this submission, stating that the only conclusion which could be made was that juries were generally not affected by the current level of publicity before or during the trial.FN35
The Commission referred to a recent meta-analysis of American empirical research which clearly indicated that pre-trial publicity affected juries' decisions about the culpability of the defendant, noting that while the degree of pre-trial publicity permitted in America was very much greater than in New Zealand, it could be assumed that the more pre-trial publicity was permitted, the more its effect would move away from the current low-impact position in New Zealand. A development which the Commission did not find desirable.FN36
In 1996, a studyFN37 was designed to assess the effect of pretrial publicity in the Bernardo case which was one of the most sensational cases in Canadian history. Two teenage girls had been abducted, kept confined for some time, repeatedly raped and ultimately killed. The search, first for the girls and then for the killer, continued for many months amid unprecedented press and television coverage. When Bernard was charged with the crimes, the police press conference was covered by all major TV and radio stations. At almost the same time, Bernardo was charged with being the Scarborough rapist, purportedly committing dozens of rapes.
The situation was further compounded by the fact that Bernardo's ex-wife was also involved in the abduction and murder of the two girls. At the time of the study, she had already been convicted of manslaughter, sentenced to 12 years in prison, and was expected to testify against Bernardo. Despite, or perhaps because of, a court ban on reporting almost anything about the ex-wife's case, there was continual discussion about the case in the press and virtually all of the information and misinformation was against Bernardo.
Among Ontarians, who would be the jurors in the case, everyone had heard at least a little about the case and they did not differ on any measure as a function of how much they said that they had heard. The results of the study suggested that, even in this sensational case, pretrial publicity had little effect. When all subjects were included in the sample, there was an association between the amount of pretrial publicity and the pretrial ratings of guilty, but there was little residual effect once they had read a short summary of the possible trial.
One of the most ambitious attempts to achieve realism in a jury simulation study of the effect of pretrial publicity on a jury involved randomly selecting individuals from the juror pools for two actual courts, conducting the experiments in actual courtrooms, using a three-hour audio tape based on the actual trial transcript and allowing the mock jury to deliberate for several hours.FN38 The study examined the combined effects of two types of pretrial prejudice: reports of a prior criminal record and of a withdrawn confession. The variation in exposure to pretrial publicity was achieved through two sets of simulated newspaper clippings. The neutral set contained only facts which were admissible in court, while the prejudicial set included a report of the criminal background of the accused and another report alleged the accused had retracted a confession. The publicity was factually biased, but not sensationalised.
In the first trial experiment, 78% of jurors who had read the prejudicial publicity favoured conviction, while only 55% of those who had read the neutral publicity favoured conviction. In a similar second trial experiment, 60% of prejudiced jurors convicted the accused, while only 15% of the neutral jurors did so. The results indicated that the prejudicial effect of pretrial publicity on mock jurors was not restricted to highly artificial experimental conditions.
An overview of the American research literatureFN39 suggested that intensive pretrial publicity can adversely affect public opinion and jury verdicts and that, with few exceptions, the research consistently called into question the effectiveness of most of the commonly relied on remedies (eg a continuance or a voir dire to remove prejudiced jurors) for such publicity. While conceding that the research did not prove that pretrial publicity would prejudice jury decision-making in any particular trial, it noted that there were genuine risks associated with intensive pretrial publicity.
A 1999 meta-analytic reviewFN40 provides additional support for the results of these individual pretrial publicity studies. The review examined 44 empirical pretrial publicity investigations involving 5,755 participants. The results indicated that there clearly was an overall damaging effect of negative pretrial publicity. Greater effect sizes were obtained in studies with higher external validity such as when potential juror pool participants were used rather than undergraduates, when real pretrial publicity was used as opposed to simulated publicity, and with greater length of time between pretrial publicity exposure and judgment. In addition, greater effect sizes were also obtained when participants were asked to indicate verdict preferences prior to trial exposure, when there were multiple items of negative information in the publicity, and in crimes of murder, sexual abuse, or drugs.
More recently an article reviewed the relevant social science research pertaining to the biasing effects of pretrial publicity and inadmissible evidence.FN41 It found that empirical research has demonstrated that the legal safeguards intended to counter pretrial publicity are relatively ineffective and sometimes produce a backfire effect, resulting in jurors being more likely to rely on inadmissible information after they have been specifically instructed to disregard it. The article canvasses several social psychological theories to provide explanations for the failure of admonitions, including belief perseverance, the hindsight bias, reactance theory, and the theory of ironic processes of mental control.
Footnotes
FN1 Attorney-General v Leveller Magazine Ltd [1979] AC 440, at pp 449-450, per Lord Diplock.
FN2 Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242, per Jordan CJ.
FN3 Contempt Research Paper No 4, Prejudicial Publicity and the Courts, Australian Law Reform Commission, 1986, at p 80.
FN4 Contempt: Judicial assertions but no evidence, (1996) 34 (6) LSJ 48.
FN5 Contempt Research Paper No 4, Prejudicial Publicity and the Courts, Australian Law Reform Commission, 1986.
FN6 Ibid.
FN7 Ibid, at p 11-29.
FN8 Ibid, at p 29.
FN9 Ibid, at p 30.
FN10 Australian Law Reform Commission, Contempt, ALRC 35, 1987, at p 162ff.
FN11 Newspapers or Television: Which do you Believe, RF Carter and BS Greenberg, (1965) 42 Journalism Quarterly 29.
FN12 The News in Focus, P Edgar (ed), McMillan, Melbourne, 1980, p 185ff; Prejudicial Publicity and the Courts, I Freckelton, (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986) at p 15.
FN13 Introduction to Psychology, RL Atkinson; RC Atkinson and ER Hilgard, 8th ed, Harcourt Brace, San Diego, 1983, p 243ff.
FN14 Forming Impressions of Personality, SE Asch, (1946) 41 Journal of Abnormal Social Psychology 258.
FN15 The Press, the Jury and the Behavioural Sciences, W Wilcox, (1968) 9 Journalism Monographs 1.
FN16 View from the Jury Room, C Petre, National Times, 4-10 May 1984.
FN17 Evidence Research Paper No 11, Character and Conduct, Australian Law Reform Commission, 1983, p 255.
FN18 NSW Law Reform Commission, Discussion Paper 43, Contempt by Publication, 2000.
FN19 Supra.
FN20 Supra, at para 2.67.
FN21 Supra, at para 2.66.
FN22 Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales, M Chesterman; J Chan; S Hampton, Law and Justice Foundation of NSW, 2001.
FN23 Ibid at p 67ff.
FN24 Ibid at p 35ff.
FN25 The interviews with jurors were pre-authorised by the Attorney-General under sec 68A(3) of the Jury Act 1977 (NSW).
FN26 Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales, Briefing Note, 13 March 2001.
FN27 Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials in New South Wales, M Chesterman; J Chan; S Hampton, Law and Justice Foundation of NSW, 2001, at p 196.
FN28 Ibid, at pp 199-200.
FN29 Ibid, at p 198ff.
FN30 sec 68A(3).
FN31 NSW Law Reform Commission, Discussion Paper 43, Contempt by Publication, 2000, para 2.66.
FN32 New Zealand Law Commission, Preliminary Paper 37, Juries in Criminal Trials: Part Two, NZLCPP 37, 1999.
FN33 Ibid, at para 7.57.
FN34 New Zealand Law Commission Report 69, Juries in Criminal Trials, NZLC R69, 2001.
FN35 Ibid, at p 180.
FN36 Ibid.
FN37 The effect of pretrial publicity: the Bernardo case, JL Freedman and TM Burke, Canadian Journal of Criminology, July 1996, Vol 38 No 3, p 253.
FN38 Legal and social-psychological research in the effects of pre-trial publicity on juries, Padawer-Singer et al, Law & Psychology Review, Vol 3, Fall 1977, p 71.
FN39 The effects of pre-trial publicity on jurors, Norbert L Kerr, Judicature, Nov-Dec 1994, Vol 78 No 3, p 120 at p 127.
FN40 The effects of pretrial publicity on juror verdicts: A meta-analytic review, NM Steblay, J Besirevic, SM Fulero, B Jimenez-Lorente, Law and Human Behavior, Vol 23, p 219.
FN41 Understanding the Limits of Limiting Instructions: Social Psychological Explanations for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible Evidence, Joel D. Lieberman and Jamie Arndt, September 2000, 6 Psychology Public Policy and Law, p 677.