I’m writing this from my experiences in England, but, as far as I’m aware, it’s applicable as a general rule…
Why, when the “rule” in the justice system is “innocent until proven guilty”, are the names of suspects released for the media to badmouth, tarnish, and generally ruin. Often, the cases are then thrown out of court, but the formerly-accused has to then try and pick up the pieces of their lives (both personal and professional). Surely, names should only ever be released when the person in question has been found guilty.
Well, in the US, (and I assume in Brittish common law) people have the right to a pulic trial, so all details of the trial, including names, must be released to the public.
Agreed, the public’s right to see the judicial system at work is a direct response to the Star Chamber trials and other abuses of the system. I would point out that this right extends to CIVIL trials where there is no crime involved. If privacy were the paramount right, it could be argued that those trials are no one’s business but the participants.
Here in Canada, as in Great britain, we do not have the double jeopardy rule. If the prosecution is not satisfied with the jury’s findings, it can initiate a re-trial. This is supposedly balanced by a free press, which would presumably smell a witch hunt and report it.
But then, recall the infamous Karla Homolka-Paul Bernado trial, when a publication ban was ordered by the court, completely muzzling the press before during, and after the trial. Some evidence is still sealed, years after the fact.
Our press is not as free as we would like to think.
The Star Chamber is gone, but a residue still remains.
This is simply not true. The double jeopardy rule is alive in well in Canada, and to the best of my knowledge, in Britain as well.
The right is protected by section 11(h) of the *Canadian Charter of Rights and Freedoms,*which reads:
Note that there is a difference in the extent of the right from the American model, and that is that the Crown can appeal an acquittal, which is not available under the US law. If the Court of Appeal grants the Crown’s appeal, the matter normally goes back for a re-trial.
However, if the Court of Appeal dismisses the appeal, that’s it: the Crown prosecutor can’t just start up a new process. That would be contrary to section 11(h).
It’s the right of the accused to have a speedy and public trial, for their protection, should they desire it. It is NOT the right of the public to attend attend/watch any trial they wish. (Hence the ability to have court records sealed). Not sure when exactly this got twisted around. I think it was somewhere around the time when Freedom of the Press was determined to mean Freedom to Enter any Realm Upon Demand.
Just wanted to touch upon a couple of subjects which might answer the OP.
First, the right to disparage the accused, etc., is not entirely without limit. At a certain point, rare as it is, you get into a libel/defamation situation. Richard(?) Jewell, the briefly-alleged Olympic Park Bomber in Atlanta, ended up obtaining a substantial settlement IIRC correctly.
Second, bear in mind that nearly every indictment (of course, the law being what it is, there are exceptions) has to be handed down by a Grand Jury. While it is said that a good prosecutor can get a GJ to indict a ham sandwich, the act of being indicted signals at least that the prosecutor was willing to put their rep on the line and that the grand jurors were at least willing to go along. So there is at least an argument there that the mere fact of being indicted entitles outsiders to look askance (sp?) at the accused. It’s like the difference between being impeached by the House and convicted by the Senate – neither one looks very good on the resume.
Biffer, there is a rule in Britain that photographs of the accused cannot be published, though, isn’t there? (I’m thinking of the Jill Dando murder.) No such rule in the US.
The OP proceeds from a false premise in that it is incorrect to say that the media in England can ‘badmouth, tarnish, and generally ruin’ the accused before or during a case. Comment which may prejudice the trial amounts to contempt. The English courts do enforce this rule (although not as zealously as their Scottish equivalents) and even the tabloids know how much they can expect to get away with. This does not mean that reporting takes place in an information vacuum. Perceptions that the accused must be evil or whatever are often fixed by the initial reporting of the crime before any suspect was identified. Reporting of the trial inevitably focuses on the more dramatic details. Restrictions apply even after the verdict has been reached. Reports of the outcome of a trial are always careful to assume that the verdict was correct. Any public doubts about the outcome are, at least initially, reported neutrally. The nature of English libel law makes journalists very sensitive to these sorts of legal issues.
The fundamental reason why the names of the accused are released once charges have been brought is the maxim about justice being seen to be done. A more practical consideration is to encourage anyone with relevant information to come forward. The assumption is that this will be of greatest benefit to someone who is innocent.
I think there is, but it only applies once the person in question has been charged with the offence. This means that photos can be published in the papers almost on a daily basis before the suspect is arrested (e.g. Kenneth Noye).
In the Jill Dando case, it’s quite clear from the photofit that the murderer was Alistair Campbell, whose picture still appears in the papers on a fairly regular basis.
Thought the cost of bringing a libel case mitigates this journalistic caution in the case of private individuals on modest incomes.
But it was interesting to see the caution with which some papers (the Evening Standard in particular) treated Michael Stone once his appeal had been granted.
I would disagree with this statement as well. It’s always been a basic principle that the courts are open to the public. The community has the right to know what has happened, and what the outcome was. As well, the public has the right to know that the case has been fairly resolved, and that the accused didn’t get any special treatment. Hence, the public right to attend.
While courts can occasionally sit in camera, there has to be clear statutory authority to do so, and a very good reason on the facts of the particular case. In Canada, there have been cases where court decisions were set aside simply because the public was improperly excluded from the proceedings.
TomH - Your comments about the libel laws are beside the point. The wealth of the defendant in the original case is not a relevant factor in contempt cases as it is the court itself which is acting against the offending publication. My point was rather that the frequent use of the English libel laws, usually by the wealthy, creates a climate in which the media must be careful about the legal implications of anything it reports. Legal advice is routinely sought by all the major news organisations. The result is that journalists know where the legal boundaries are, even if they sometimes choose to ignore them. They also know that risking an action for contempt is foolhardy in a way that risking a libel action may not be.
Far more relaxed rules about prejudicial comment apply at appeal.
I was making the point that journalists do sometimes choose to ignore the legal boundaries when they know that the target of their story cannot fight back for financial reasons. This probably applies more in non-criminal cases, though.
I may be wrong, but I think the important distinction was that Jewell was defamed by the FBI, a government agency. If he had been similarly accused by private media, his suit probably would have been unsuccessful.
The tabloids today are full of pictures of the man accused of killing Jill Dando. It seems that the ban on publishing pictures (or physical descriptions) of him was ordered by a court and has now been overturned by the trial judge (BBC News story here).
Presumably the ban was intended to avoid prejudicing prospective jurors and, now they have seen him in court, it’s served its purpose.
I remember thinking, during the OJ Simpson trial, that in the balance between free speech and fair trial, America tends to err on the side of free speech and we tend to err on the side of fair trial. I’m not sure whether either postion is ideal.
Re: Canadian double jeopardy: “Note that there is a difference in the extent of the right from the American model, and that is that the Crown can appeal an acquittal, which is not available under the US law.”
More than that, a criminal defendant in the United States cannot be re-tried once a jury is empanelled – so there’s no retrial in case of mistrial, either, as I believe there is in Canada. I don’t consider the English/Canadian rule on Double Jeopardy to be analogous to the American rule; the American rule generally does not allow criminal re-trials except in very rare cases, while the Canadian/English rule allows re-trials except in very rare cases (i.e., final acquittal or the imposition of punishment).
Actually it is, unless the judge has good reason to close the court. Court proceedings in the United States are generally open to the public.
“Second, bear in mind that nearly every indictment (of course, the law being what it is, there are exceptions) has to be handed down by a Grand Jury.”
It is worth noting that at the state level in the U.S., the use of Grand Juries varies by jurisdiction. We have no grand juries in my jurisdiction, for example; all criminal charges, regardless of seriousness, are brought by government attorneys – in the case of felonies, county attorneys (the equivalent of district attorneys) or the attorney general’s office.
It is very possible to re-try a defendant in the case of a hung jury - which is a mistrial.
A mistrial on the motion of the defendent also does not offend double jeopardy protections, except if the defendent is goaded into requesting the mistrial by outrageous prosecutorial misconduct. Even a granted motion for mistrial from the prosecution, which the defendent fails to object to, will permit a new trial.
Only in a mistrial granted over the objections of the defendent can the defendent assert double jeopardy, and even then, if the prosecution can show “manifest necessity,” they may still get a re-trial. The right to have your fate decided by the first jury empanelled is a valued, but not absolute, one.
Jodi, I’m afraid I’m not following you here. Final acquittals occur regularly.
Perhaps it would help if I ask a follow-up question: can the prosecutor in the U.S. appeal the decision on a pre-trial motion in a criminal case? (I believe you call them motions in limine?) So, for example, if there is a pre-trial motion on the admissibility of particular evidence, and it goes against the prosecution, can the prosecutor seek to appeal, if the accused has not yet been arraigned in front of a jury? (I seem to recall Bricker discussing this type of appeal in another thread some time ago, but haven’t been able to find it.)
The reason I ask is to clarify exactly how the procedures work in the two court systems. In the Canadian system, the general rule is that there are no interlocutory appeals in criminal cases. If a pre-trial ruling goes against the Crown, the trial continues, and the Crown can consider appealing at the end of it all, if there was an error of law in the ruling, and that error affected the outcome. But, the Crown cannot appeal on the merits of the jury verdict itself - Crown appeals only lie on questions of law.
So, if it is simply a question of timing of the appeal - interlocutory v. final - but in both systems the jury’s verdict cannot be appealed - is there much of a difference?
This is a fairly technical matter - what I was objecting to in my original post was the statement that the Crown in Canada can just keep trying you if they don’t like the result. That is simply not true. The only way to get a re-trial is if the appellate court grants it. The Crown can’t just ignore the result of the first case, re-build the case, and charge a second time.
