When a trial is deemed newsworthy by the press, it is likely that information about the nature of the allegations, the character of the defendant or other case-relevant information is reported in the media. In short, pre-trial publicity is the media coverage of a case that occurs prior to the trial and can lead prospective jurors to form opinions about the case before hearing evidence in court. Although prejudicial pre-trial publicity is being alleged and aired by defence lawyers in the Yorgen Fenech case, in Malta we have had instances in the past of a furore of allegations of prejudicial pre-trial publicity in high profile cases.
In a 1973 murder case the accused, Formosa, complained of a breach of his fair trial rights when the Executive Police fed sensitive information to the press. Thereafter, similar complaints were aired in the ex-Police Commissioner Lawrence Pullicino’s and former Chief Justice Noel Arrigo’s cases. In all cases, the trial went ahead. In such far-reaching and high profile political cases there is an added risk that even publicity that is topically, but not directly, related to a case can influence jurors’ evaluations of trial evidence as well as their verdict choices.
The problem remains how to balance the fundamental rights of an accused referred to above with the media’s coverage rights of criminal cases. Except when there is a court order banning press coverage and reporting of judicial proceedings, there is no law regulating press censorship. When publicity threatens a defendant's right to a fair trial, courts must use remedies other than censorship to protect the defendant's right. Abroad, especially in large countries, when pre-trial publicity is perceived, a trial may be postponed and moved to different areas where the trial may have received less publicity. In the overwhelming majority of criminal trials, pre-trial publicity presents few unmanageable threats to this important right. But when the case is a “sensational” one, tensions develop between the right of the accused to trial by an impartial jury and the legal guarantees of the freedom of speech and freedom of the press.
In Malta, being such a small country where everybody practically knows something, if not everything, about everyone, providing a suitable judicial remedy when pre-trial prejudicial publicity is discerned may prove to be quite problematic. At best, the court may postpone trial proceedings in order to allow time for the initial publicity to dissipate. The judge can also modify jury instructions to specifically instruct jurors to ignore pre-trial publicity. At worst, a judge may decide that pre-trial publicity entirely prevents an impartial jury from being convened, literally meaning that nine eligible people in an entire jury pool cannot be found impartial. For certain offences, our law affords the accused the option to be tried without a jury.
Empirical research suggests that exposure to pre-trial publicity causes jurors to be more conviction prone, especially when the publicity is designed to elicit an emotional response rather than present facts. This is more so in our country when any high profile case involving high ranking officials and personalities is assiduously given press and media coverage throughout the initial criminal proceedings followed by gratuitous comments and conclusions on social media as to the guilt or otherwise of the accused on the termination of those proceedings. This is why perhaps, more than ever, our Justice Minister has felt the need to reform our criminal procedure system by doing away with the unnecessary and repetitive compilation of evidence proceedings and replacing them with more practical and time-efficient ones that would at the same time lessen any risk of prejudicial pre-trial publicity.
Not only would such a reform reduce the risk but it would even eliminate that other harmful and prejudicial risk of when the media report and cover evidence which eventually will be declared legally inadmissible. A community member exposed to inadmissible evidence via pre-trial publicity during the compilation of evidence proceedings may be unable to put aside or ignore the prohibited information if he or she is chosen to serve as a juror for the case. These kinds of biases violate the defendant’s constitutional right to a fair and impartial jury.
One of the great myths about media and the criminal justice system is that, while defence lawyers are running around out there, preening for the cameras on the courthouse steps and trying their high-profile cases in the media, prosecutors and their teams stand stoically and muzzled by prosecutorial ethics. Yet the reality is much different. Investigating officers often do anything but stand silently by, especially in high-profile cases. They hold press conferences discussing the facts of criminal cases and comment on the role of any number of persons before the first piece of evidence has been presented in an adversarial proceeding.
Even if prosecution teams do not hold regular press conferences, they speak loudly with every action they take in a case, from drafting affidavits in support of warrants to shutting down businesses and descending on homes to execute those warrants, to seizing assets allegedly connected to a crime. By contrast, criminal defence lawyers never get to “speak” by such authoritative and public actions. And while many of them go most of their professional lives without having to deal with media inquiries about their cases, they can never predict when they might be retained by or appointed to represent a client whose case becomes a matter of public interest. When that happens, it is only a matter of time before a reporter calls or they are questioned outside a court appearance. The words they utter (or do not utter) in the face of those inquiries are, in many respects, just as important as whatever they might say (or not say) to a judge or jury in open court.
Oh yes, the media is the most powerful entity on earth. They have the power to make the guilty innocent and to make the innocent guilty. Now that is really powerful!
Dr Mark Said is an advocate