What is a trial?

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Trial

By


Media
-Presented by

Vinay


Deborah
What is a trial?

  • Trial is a word which is associated with the process of justice. It is the essential component on any judicial system that the accused should receive a fair trial.


What is a trial by media?

  • It is the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law.

  • Media itself does a separate investigation, builds a public opinion against the accused even before the court takes cognizance of the case.



The trends that usually determine a trial by media


    • the accused are either highly influential, powerful or related to them in some way




    • the coverage in the press on the trial can be said to reflect the views of the person in the street

    • to declare a person guilty right at the time of arrest.


Why does a trial by media suffer criticism?

  • According to our law, a suspect/accused is entitled to a fair procedure and is presumed to be innocent till proved guilty in a Court of law. None can be allowed to prejudge or prejudice his case by the time it goes to trial.

-By Law commission of India 200th report on trial by media free speech and fair trial under criminal procedure code, 1973 august 2006,- Justice m. Jagannadha rao, Law commission of India

Notes:

The right to a fair trial is at the heart of the Indian criminal justice system. It encompasses several other rights including


  • the right to be presumed innocent until proven guilty,

  • the right not to be compelled to be a witness against oneself,

  • the right to a public trial,

  • the right to legal representation,

  • the right to speedy trial,

  • the right to be present during trial and examine witnesses, etc.

In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court explained that a “[f]air trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” 


Is there any contempt of court involved?

In accordance with Article 19(2), this right can be restricted by law only in the “interests of the sovereignty and integrity of India, ….in relation to contempt of court, defamation or incitement to an offence.” 

Trial By Media Is Contempt Of Court


  • Scandalizing

  • Prejudicing trial

  • Hindering the administration of justice

Notes:

Article 19(1) (a) of the Constitution of India guarantees the fundamental right to freedom of speech and expression.

In accordance with Article 19(2), this right can be restricted by law only in the “interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” 

No publication, which is calculated to poison the minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt.[12]

Commenting on the pending cases or abuse of party may amount to contempt only when a case is triable by a judge. [13]
No editor has the right to assume the role of an investigator to try to prejudice the court against any person. [14]
Under the Contempt of Courts Acts of 1926 and 1952, unlike the Act

of 1971, there was no specific definition of ‘civil’ or ‘criminal’ contempt.

Further before 1971, the common law principles were applied to treat

prejudicial publications made even before the ‘arrest’ of a person as

contempt. In fact, some Courts were treating as ‘criminal contempt’,

prejudicial publications even if they were made after the filing of a First

Information Report (FIR). But the Supreme Court, in Surendra Mohanty v.

State of Orissa (Crl. App. 107/56 dt. 23.1.1961) however, held that filing of

an FIR could not be the starting point of pendency of a criminal case.

Because of that judgment, a prejudicial publication made after the filing of

the FIR gained immunity from law of contempt. But in 1969, the Supreme

Court held in A.K. Gopalan v. Noordeen 1969 (2) SCC 734 (15th Sept.,

1969) that a publication made after ‘arrest’ of a person could be contempt if

it was prejudicial to the suspect or accused.


The first traces of this trend

  • One of the first celebrities in the 20th century to be arguably tried by media was Roscoe fatty arbuckle who was acquitted by the courts but nevertheless lost his career and reputation due to the media coverage.


Notes:

Parallels can be drawn between these cases and the trial of O.J. Simpson. The connection is less about guilt or innocence but about the promotion of the media coverage in the public mind above the status of the court.

Another interesting case in the US was the Rodney King incident and subsequent trial of the police officers involved. Once again an acquittal is challenged by the media reporting with violent consequences. What makes this case particularly important historically is the fact that it was amateur video footage which provided the key evidence of perceived guilt.
Trial by Media in India

Some famous criminal cases that would have gone unpunished but for the intervention of media are Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and rape case.


The media however drew flak in the reporting of murder of Aarushi Talwar, when it preempted the court and reported that her own father Dr. Rajesh Talwar, and possibly her mother Nupur Talwar were involved in her murder, The CBI later declared that Rajesh was not the killer.
Criticism of trial by media

We saw that in coverage of Balakrishna Kakatkar’s wife and kin’s highly suspicious death earlier this month - where Bangalore media covered up the deaths under the threat from drunkard, wife beater, blackmailer Balakrishna Kakatkar. 

AOC axed D'Arcy after

trial by media: coach


Notes:

Nick D'Arcy's coach Brian Stehr

says the media played a big part in the Australian Olympic

Committee's decision to drop the swimmer from the team for Beijing.

This Story was given in the Hindu newpapers and was highly appreciated on online discussion forums for avoiding selective self censoring of the media

On 31 March 2008, D'Arcy was charged with assault after an alleged brawl with former Commonwealth Games triple gold medalist on the night of his naming in the Australian Olympic team.[

Several Supreme Court and House of Lords accept that prejudicial publications may

affect Judges subconsciously

Positives of trial by media


  • Some famous criminal cases would have gone unpunished but for the intervention of media

  • Brought out the corrupted ness of parties involved (as most accused are generally high profile groups)

  • Speedy verdicts

  • Families and friends of persons convicted of crimes have apparently successfully used the power of the media to reopen cases,

Notes:

High profile groups like sanjeev nanda – ex chief naval grandson

such as the Stephen Downing case in Derbyshire where a campaign by a local newspaper editor resulted in a successful appeal and his release after twenty seven years in prison.
Case studies

Priyadarshini Mattoo Case


  • 'Priyadarshini Mattoo' was found raped and murdered at her house in New Delhi on January 23, 1996.

  • On October 17, 2006, the Delhi High Court found Santosh Kumar Singh guilty on both counts on October 30 of the same year sentenced him to death.

  • The High Court decision was widely perceived in India as a landmark reversal and a measure of the force of media pressure in a democratic setup.

Notes:

'Priyadarshini Mattoo' (July 23, 1970 - January 23, 1996) was a 25 year old law student when she was found raped and murdered at her house in New Delhi on January 23, 1996.

On October 17, 2006, the Delhi High Court found Santosh Kumar Singh guilty on both counts of rape and murder and on October 30 of the same year sentenced him to death.

Santosh Kumar Singh, the son of a Police Inspector-General, had earlier been acquitted by a trial court in 1999, and the High Court decision was widely perceived in India as a landmark reversal and a measure of the force of media pressure in a democratic setup. -----The acquittal of Santosh Singh in 1999 had led to a massive public outcry and the investigating agency CBI, under considerable pressure, challenged the judgment in the Delhi high court on February 29, 2000. Public pressure mounted greatly after an acquittal verdict in the Jessica Lal case, where a number of accused including politician's son Manu Sharma were released despite the murder taking place in a high-society bar in the presence of dozens of people.

This decision went in favor because the facts were not presented correctly in the lower court. The intense media spotlight also led to an accelerated trial, unprecedented in the tangled Indian court system.

with Priyadarshini's aged father Chaman Lal Matoo making frequent appearances on TV, bringing the judiciary under intense pressure.

On August 31, 2006, six years after the initial appeal by CBI, justices RS Sodhi and PK Bhasin took up the case on a day-to-day hearing basis, which is extremely rare in India. Judgment was reached within 42 days which is quite unprecedented.

The case is one of several in India that highlight the ineffectiveness of traditional criminal law system, especially when it comes to high profile perpetrators, including the Manu Sharma and Sanjeev Nanda acquittals.

Appeal To Supreme Court

Santosh Singh appealed to the Supreme Court of India on 19th Feb 07, the Delhi High Court order awarding death penalty to Santosh Kumar Singh in the Priyadarshini Mattoo rape and murder case was stayed. [2]The court also issued a notice to the Central Bureau of Investigation on an appeal filed by the convict against the high court's judgment. The trial is yet to begin and Santosh Singh is lodged in the Tihar Jail. The defense lawyers of the accused Santosh Singh are likely to question the validity of the DNA report one of the main causes why he was given the benefit of doubt in the Trial court. There have been doubts it was tampered. Further the issue of Trial by Media is likely to be raised and whether excessive media coverage has influenced the verdict.

Jessica Lal case


  • A model in New Delhi, was shot dead on April 29, 1999

  • Dozens of witnesses pointed to Siddharth Vashisht, a.k.a. Manu Sharma, the son of Venod Sharma, a wealthy Congress politician in Harlan, as the murderer.

  • In the ensuing trial over seven years, Manu Sharma and a number of others were acquitted on February 21, 2006.

  • Following intense media and public pressure, the prosecution appealed (a rare measure) and the Delhi High Court conducted proceedings on a fast track with daily hearings over 25 days. The lower court judgment was found faulty in law, and Manu Sharma was found guilty of having murdered Jessica Lall. He was sentenced to life on December 20, 2006.

hundreds of thousands of people e-mailed and SMS-ed their outrage on petitions forwarded by media channels and newspapers to the President and others seeking remedies for the alleged miscarriage of justice.

Notes:

Soon, NDTV a news channel more than 200,000 cellphone text messages urging retrial.

A poll conducted by the newspaper Hindustan Times showed that on a scale of 1 to 10, the public's faith in law enforcement in India was about 2.7 Public pressure built up with newspapers splashing headlines such as "No one killed Jessica", and TV channels running SMS polls. Models, fashion designers, friends, relatives and others held candle-light vigils at India Gate in New Delhi to protest the verdict, followed by an even bigger candle light protest accompanied by a unique week long t-shirt campaign (slogan: we support re-investigation of Jessica Lal's murder, let the truth come out) in Manu Sharma's hometown, Chandigarh.

Negatives of a trial by media


  • Such coverage of trials are likely to have prejudicial impact on the suspects, accused, witnesses and even Judges and in general, on the administration of justice.

  • Even though the accused are acquitted by the courts they nevertheless lose their careers and reputation due to the media coverage.

  • Grand juries were dismissed as a result of excessive media coverage, which might influence their neutrality

  • Cases are dismissed on the grounds of a mistrial

  • jurors struggle mightily against their initial impressions.

  • It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’.

Notes:

Now, what we observe is media trial where the media itself does a separate investigation, builds a public opinion against the

accused even before the court takes cognizance of the case. By this way, it prejudices the

public and sometimes even judges and as a result the accused, that should be assumed

innocent, is presumed as a criminal leaving all his rights and liberty unredressed. If excessive

publicity in the media about a suspect or an accused before trial prejudices a fair trial or

A judge may declare a mistrial due to:

The court determining that it lacks jurisdiction over a case,

Evidence being admitted improperly,

Misconduct by a party, juror, or an outside actor, if it prevents due process,

A hung jury which cannot reach a verdict with the required degree of unanimity

Disqualification of a juror after the jury is impanelled, if no alternate juror is available and the litigants do not agree to proceed with the remaining jurors.

A declaration of a mistrial generally means that the court must hold a retrial on the same subject.

An important exception occurs in criminal cases in the United States. If the court erroneously declares a mistrial, or if prosecutorial misconduct forced the defendant into moving for a mistrial, then the US Constitution's protection against double jeopardy bars any retrial; so the prosecution must be terminated.

Several issues make it more difficult for jurors in high-publicity cases:

Jurors want to appear

fair and unbiased in front of the court and the press.


want to sit on sensational trials.
• Jurors have a hard time distinguishing between impressions formed by pre-trial publicity and impressions formed in court.
• Jurors mostly do not understand or acknowledge their own biases.
• Jurors themselves sometimes do not know the strength of their impressions and opinions.
• When in a high-conflict situation, such as juror deliberations, jurors revert to their initial impressions, experiences, and opinions.
• The courts make it relatively easy to conceal or not reveal a conscious or unconscious bias.
Case Studies

Balakrishna kakatkar

  • Balakrishna Kakatkar, once a small time blackmailer now famous as anchor of Udaya TV’s “Crime Story” was accused of driving his wife to death. He routinely assaulted his wife, his wife and another relative allegedly committed “suicide” taking cyanide.

  • What is odd about the whole incident is the unusual hurry in declaring these deaths as “suicide” where Balakrishna Kakatkar himself phoned his media friends and informed them of the deaths within minutes of incident. Balakrishna Kakatkar who built a whole business based on blackmail in the name of his “Crime Story” knows all tricks and loopholes in the law, so not surprising the speed in which incident is being covered up by police, media alike.

Also interesting to see different stories and varying coverage of this double “suicide” in Karnataka newspapers. Except Vijaya Karnataka, every other newspaper probably afraid of Balakrishna Kakatkar’s blackmailing power through “Crime Story” reported this as “suicide”. Otherwise respectable “The Hindu” reported one of the deaths as “heart attack”!

Notes:

Balakrishna Kakatkar during rowdy Hitendra Prasad’s murder in Manipal.Balakrishna Kakatkar also had a distorted episode in “Crime Story” about Manipal hospital case where “journalists” Umesh Marpally and Srijith entered emergency room and were kicked out when they took photo of naked patients.

According to Deccan Herald, cases were filed against Balakrishna Kakatkar last year for trying to murder Viresh, a driver and for misusing his licensed revolver. So Balakrishna Kakatkar does have lot of criminal history, yet Udaya TV gives prime time to this criminal.
Sri Jayendra Saraswathi Swamigal


  • Between September 2004 and March 2005, the media - print, audio and visual all wrote about Sri Jayendra Saraswathi Swamigal, a Hindu religious leader, suggesting his guilt in a murder case, but the High Courts of Madras and Andhra Pradesh and the Supreme Court of India repeatedly found that there was no material evidence to find him guilty and came down heavily on the media and the Government of Tamilnadu for misuse of government machinery

Too much of media exposure on a particular case leadsto the courts discharging the case onthegrounds of a mistrial and hence the truth is left uncovered.

Notes:

Jayendra Saraswati, head abbott of Kanchi Kamakoti, was accused of killing two mill-workers as sacrifice, based solely on newspaper reports. The Andhra Pradesh High Court in Labour Liberation Front v. State of Andhra Pradesh held that the writ petition filed to force the authorities to investigate relied upon incorrect facts that should have been verified. The court observed that “(o)nce an incident involving prominent person or institution takes place, the media is swinging into action and virtually leaving very little for the prosecution or the Courts…”


Defamation suits against media
  • Biologist Steven Hatfill allegedly sending anthrax through the U.S. mail as a terrorist attack, which resulted in no conviction, but Hatfill went on to sue as his reputation was severely tarnished and career destroyed.


  • Such instances are rarely seen in the Indian context

But, even if ‘apologies’ are directed

to be published; they are published in such a way that either they are not apologies or the

apologies are published in the papers at places which are not very prominent.

Notes:

However Nadeem Saifi received compensation from the Indian government for harassment



Solutions

Solutions (in ideal situations):



  1. Financial independency

  2. Greater ethical consciousness

  3. Better effort to cover areas that are neglected or left out

  4. Delaying the publication of any prejudicial material

Notes:

1). To avoid the so- called aggressive journalism- under pressure to push up TRP ratings or sales

2) To make the professionals more aware of the consequences of their actions. Make them take responsibility of

3). In kolkatta-The Statesman publishes a frank piece on Islamic intolerance and sees its editor and publisher arrested because the mob bayed for blood.



4). The Indian Law Commission’s recent report entitled Trial by Media: Free Speech vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) has made recommendations to address the damaging effect of sensationalised news reports on the administration of justice. While the report has yet to be made public, news reports indicate that the Commission has recommended prohibiting publication of anything that is prejudicial towards the accused — a restriction that shall operate from the time of arrest. It also reportedly recommends that the High Court be empowered to direct postponement of publication or telecast in criminal cases. 
Conclusion

While freedom of expression remains an important facilitator for widespread engagement within a democratic society, it should be balanced against the right to a fair trial and the right to privacy.


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