Post No.: 0554
If someone puts up, on social media, a picture of a random stranger with the caption ‘rapist’ and a short story about what he/she allegedly did – too many people who come across it will not employ enough critical thinking or wait for verified hard evidence before judging this person as more likely to be a rapist than not, or at least more likely than the average person to be one. The comments will pour in. Most people will err on the side of caution, which in this case means being on alert for this person, because to trust someone who is untrustworthy will be more dangerous than to distrust someone who is actually trustworthy. But this bias means that mere rumours are already damaging.
Much of the traditional and social media will have come to their own conclusions, and the reputation, and potentially mental health, of the accused but potentially innocent could be harmed. People say ‘there is no smoke without fire’ but there are smoke machines; and even if there is a fuzzy fire, it doesn’t tell us who actually lit it. Innocent people do sometimes get framed, scapegoated or mistaken in identity (especially when people think, for example, ‘all Asian people look the same’ due to the cross-race effect). But almost everyone’s got an opinion even if they know too little.
Publicly-disclosed, pre-trial information (such as via social media or the news) can, and usually does, contaminate the views of jurors and can therefore scupper a fair trial. It’s regarded as a contempt of court and comes with a weighty penalty for what can often be just an emotional comment made on social media. Such external information may be unproven allegations suddenly surfacing, for instance. And making allegations without being able to provide supporting evidence for them is not a morally fair way of doing things – one should be able to empathise with this if one imagines being on the receiving end of unsubstantiated allegations. (This presents a huge dilemma with rape or domestic abuse victims though, who generally need to be believed, yet at the same time the accused must be regarded as innocent unless proven guilty. I guess we must never make a guilty verdict too prematurely, but must seriously take and thoroughly investigate every single claim.)
Jurors who are exposed to pre-trial publicity may consciously believe that they’re not influenced by anything they’ve seen or heard outside of court, but they may be corrupted at an unconscious level and will not be able to consciously identify or unconsciously ignore what’s influencing their decisions at a deep or hidden level. Therefore simply telling people to disregard any media reports is ineffective because it’s impossible to un-see and un-hear things, and these things will continue to influence them below or beyond their consciousness.
It’s not just jurors. Eyewitnesses can also be influenced by pre-trial media reports too. Even if some external influence doesn’t contain any factual inaccuracies, it can still affect eyewitness memories because of how they will be (re)interpreted.
Suppression orders are used to try to ensure that the accused gets a fair trial by preventing potential jury members from being exposed to (almost invariably negative) prejudicial and unverifiable information about the defendant prior to trial. Just simply calling someone a ‘victim’ already presumes the defendant is guilty.
Very few cases actually receive any pre-trial exposure, but those that do tend to be for high-profile or well-known public figures and hence receive a lot of pre-trial exposure; and it’s not possible to prevent every potential juror from being exposed to the media concerning a particular case. (Once selected, jurors are sequestered to prevent them from being exposed to information that isn’t admissible in court, but they may have already been exposed to some pre-trial publicity before then.) Courts also cannot really impose a restriction on the media reporting on a case until there is a defendant who has been identified.
Publicly naming suspects before any charges have even been made against them can actually have the unhelpful effect of giving those suspects the defensive argument that public opinions may have biased the opinions of the courts!
Jurors are more likely than judges to be influenced by negative media stories about the accused, leading to more guilty verdicts from jurors, especially in cases involving murder, sexual abuse or drugs. The longer the interval between the media exposure and the verdict – the stronger the effect too. This may be because we can easily confuse where information has come from, such as whether it was learnt from the media or learnt whilst in court? And it has a delayed impact on us because we can easily forget that it came from a source that perhaps shouldn’t be relied upon. ‘Source amnesia’ is the term for when we can more relatively easily remember a piece of information than where it originated from. (Have you ever had the experience where you told someone something and then days later they ask whether you had heard of the story that you had just told them?!) The effect is reduced though if the admissible evidence for the case at hand is weak, so it plays a minor role compared to the evidence – but it still plays a role, especially if the trial is finely balanced.
Negative pre-trial publicity can also result in jurors discounting evidence in court that supports the defendant’s side. The media more often publishes negative stories in general – bad news or news stories that convey fear alert us more than good news, and media outlets want to grab eyeballs, generate clicks and sell papers hence they’ll mostly publish what grabs our attention. The vast majority of us will seek to avoid a pain before seeking a gain too and will therefore distrust far more easily than trust. This is why it’s far easier to demolish a good reputation via a smear campaign than to build or rebuild one. Plus we, via confirmation bias, tend to stick with the opinion we latch onto first – and so if our first opinion is one of distrust and fear then that’s the opinion that’ll (at least subconsciously) stick and be hard to shift.
We frequently hear statements from legal counsels saying that they cannot or will not discuss pending or ongoing cases with the media, bar perhaps giving some canned responses that don’t specifically refer to the case in question, in case they say or suggest something that harms their clients. As an aside, the job of a criminal defence lawyer can be a thankless one too for defending the accused, even though they are required for a just and proper legal process.
It overall demonstrates the destructive power – in any context – of negative lies and unsubstantiated rumours, hearsay or gossip in damaging a person or group’s reputation, even if the allegations are later disproved or dropped. Employers, for instance, may accept that you’ve been found not guilty yet still not risk hiring you, just in case, especially when there are many other job applicants they could hire without this conundrum instead. That’s why it’s a devious strategy to try to find and throw dirt on your political opponents. (Instead of trying to trash a political opponent to put them down, one should maybe show that one loves and cares about every single citizen of one’s country, them included… even though they’re dumb(!))
So pre-trial publicity can distort the minds of jurors and affect eyewitness memories or interpretations of the evidence, generally in favour of the prosecution case. There may be fake news or doctored images, for instance, and not just popular public opinions and hypotheses, being circulated. Media coverage can even help shape the story that jurors create to explain the evidence they hear about within a trial.
One could use a judge-only trial but they can be influenced by the media too, although typically less so. Another potential solution is to completely change the venue of the trial and to change the potential group of jurors to one that is less likely to have heard about the case.
On the whole, a public court of opinion is not a good way to conduct a trial!
So be careful not to spread conjectures, and try to leave judgements of guilt to those who will actually get to closely examine the evidence or lack of it. We want woof justice, not rough justice!
Woof! If you like this post on criminal justice then Post No.: 0521 discussed the reliability of polygraph or lie detector tests.