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Law or Justice Revisited

Entry 845, on 2008-09-04 at 19:40:19 (Rating 4, News)

A few weeks back a New Zealand judge banned the names of some defendants in a court case from being displayed on the Internet. It was OK to publish them in any other media but not on the 'net. Isn't that a bit strange? Maybe there was something about the case we didn't know about and maybe there have been further developments since then, I haven't really followed it, but it got me thinking about the issue of suppressing public information in general.

The justice system... actually let's get real and call it what it really is... the legal system is supposed to belong to everyone. Its supposed to be open to scrutiny and its workings are supposed to be transparent. How can that happen if a judge can arbitrarily stop the facts of different cases being made available to the people who really "own" the system? Well it can't happen, of course.

I tackled this theme in a blog entry over two years ago (2006-04-07, Law or Justice?) regarding a high profile case where previous convictions against some of the defendants was hidden from the jury. I said at the time that, if we are going to trust the jury system why not really trust it and give the jury members all the relevant information? Its insulting hiding some information from them because they might not be able to handle it appropriately. If we don't trust them why have jury trials at all?

The other issue is that its almost hopeless trying to stop information from being distributed on the Internet. I know that as soon as I hear that information has been suppressed the first thing I do is look for it (and find it) on the Internet. Like a lot of examples of this type of decision it achieves the exact opposite of what it sets out to do.

The other thing these suppression orders achieve is to force the information into sources which might have less balance. By that I mean sources like blogs as opposed to more traditional sources like news sites run by newspapers, radio and tv.

On the other hand, its got to the point now where I don't really trust traditional sources any more because the commercial pressures and limitations they operate under mean they are unlikely to really demonstrate balanced and in-depth reporting in many cases.

But to repeat what I said a few days ago: "I guess it gets back to the fact that the media no longer exercises any reasonable scrutiny of what they publish and are more interested in churning out a lot of cheap and sensational stories instead of investigating the facts properly. But that's a rant for another day!"

Comment 1 (1615) by GadgetDon on 2008-09-06 at 03:16:17:

I'm torn on the idea of identifying suspects and defendants...while I'm very much a free speech guy, the unfortunate fact is that the news of "so-and-so is accused of this crime" spreads a LOT faster than "was found not guilty". I suppose I oppose it because it's ineffective, but it's the old question, "where do I go to get my reputation back".

As for juries...in the U.S. at least, for a civil trial, the jury exists to judge from the facts of the case if that defendant committed committed this crime beyond a reasonable doubt. The juries are barred from bringing in their own information, just what was presented in the trial. And judges are there to determine if evidence provided actually speaks to the events of this crime and admit it, or keep out evidence that doesn't speak that the events of this crime.

So...if Joe Smith is accused of a home burglar, and he has a number of past convictions for home burglary, that may be admissible, because it shows a pattern. But if Joe has past convictions for things like fraud, drug use, beating up his wife, whatever, it says nothing about whether he committed that home burglary.

Now, if Joe takes the stand, and talks about his upstanding character, never having been in trouble before...then the convictions can come in, to prove that he was a liar. Which is high on the list of reasons not to take the stand in your own defense (which in the United States is your right, and the jury is not allowed to consider your silence as indicating anything, and the prosecutor absolutely cannot point out your lack of taking the stand).

Why not give everything to the jury? In part because they are human, are likely to have biases. One of the ways of dealing with this bias is telling the jurors, "you are to make your decision based on this pile of evidence", and provide the evidence that by law pertains to this case. They'll still have biases, but they also have rules to work with.

And I approve. If the prosecutor, with all the resources of the state, can't prove you are guilty of a crime based on the evidence about this crime, you should go free. Because, imagine if you really messed up your life early on, did some bad things, served your time and have cleaned up your act. Then there's a new crime, you were somewhere near it but that's it...the crimes you've already been punished for should not be sufficient to punish you for this crime.

Comment 2 (1617) by OJB on 2008-09-06 at 12:26:28:

I agree that this issue can be seen from both perspectives and I agree with a lot of what you say. The problem with limiting what is presented at the trial is that what is admissible and what isn't is itself a matter of opinion. It often gets back to what the judge thinks.

Judges are also human and are biased, just like juries. I know they have legal training and that should help with their decision making but if we want the judge to make the decisions then why not just let him judge the case? My point is that if we are going to trust a jury then let's trust them all the way.

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