Amicus Curiae: Can anyone ever win in the Court of Public Opinion?

By Eve Gamet

Definition: The court of public opinion refers to the use of news media to influence public support for one side or the other in a court case. This can result in people outside the justice system taking action for or against a party.

Fundamental to justice is the right to a fair trial and the presumption of innocence. In the court of public opinion, anything goes; all voices are loud, and a good story often spreads further than fact. With the proliferation of social media, and the expansive reach of digital news, criminal reporting is now more accessible than ever. Comment sections have become spaces for abject protestors, legal critics, and concerned citizens to have their say. In the court of public opinion, facts are often undermined in favour of controversy; and the loudest voices are often not the most correct.

Judges look to precedent, the facts and current laws in deliberation. They intend to be impartial and fair in doling out their justice. The person before the court must be judged based on evidence, not opinion. In contrast, the “court of public opinion is an alternative system of justice”; one where the crowd rules and “having a good story is more important” than truth. The speed of the news cycle and the ability of stories to ‘go viral’, often reduces a case to the bare facts; simplifying the situation for easy readability. The media often curates evidence and encourages readers to ‘work it out’ for themselves within the comments sections. Thus, the outcry becomes the story. This can allow a perceived victim of the court system to take their appeal straight to the media, bypassing the traditional court system or rewording the judgment to favour their case. Legal rules are allowed to be ignored, because in the sphere of public opinion: money, influence and controversial opinions are just as influential as a court ruling.

Click-bait journalists hope to polarise readers, abbreviating complex issues to allow for drama. Certain journalists negate the facts and issues become populist, to shock and amass revenue. While the comments section of the New Zealand Herald may prove entertaining reading, click-bait journalism has led to a reduction in public knowledge of the justice system. This impacts our interaction with justice. If we are consistently told that the system fails, and perceive justice as untenable, a common distrust is fostered. From this, we are less likely to engage in legal dispute resolution processes or seek help. This risks leading us towards “a world in which people would be inclined to take the law into their own hands”.

Online exaggerated media has a powerful way of influencing public perception. This was shown in New Zealand following the high profile Losi Filipo case, in which the rugby player was discharged without conviction. This ended in widespread condemnation of criminal justice, in which many berated the system as giving athletes “a get out of jail free-card”. On ‘Story’, Heather Du Plessis Allen criticised the judiciary for its protection of judges, ‘who cannot be fired for bad decisions’. The show then posted a poll on social media, animating discussion over the system’s credibility. Considering that readers were only given half of the story, it was hardly surprising that when asked if judge’s right to discharge without conviction should be reviewed 88% of online votes voted ‘yes’.

While the sensationalised stories allude to a justice system that favours athletes; this is not the case. Athletes gain attention due to their high-profile nature, but their case is still decided on its merits. Many of the reports focused on sound-bites from Filipo’s trial, and ignored salient sentencing notes from Judge Davidson, specifically:

“Professional sport is a career path available to young people who have the requisite skills and ability… it should not be seen as anything less than, say for example, a career in law or medicine or the police force or anything else”. In this case, the media trope of an unreliable criminal justice system was played out to stir controversy and garner attention. This ultimately resulted in distrust of the judiciary.

The court of public opinion also impacts our political decisions. One of the main functions of media is to inform voters, to allow for democratic decision making. Politicians respond to society’s opinions. Through polls, people are forced to pick a simple side, rather than contemplate complex facts or encourage politicians to debate complex issues. In a game where the most outrageous comments attract attention, there is the risk that “decision makers will make overly simplistic solutions” based on wrongful public outcry to vie for votes in election times.

However, the court of public opinion is not inherently bad. The law reflects societal values which shift with time; for example, marital rape is now codified whereas very recently it was not. For this to occur, public debate is necessary. The criminal justice system recognises “that the rule of law rests on the existence of public confidence in the courts”. So to ignore public attitudes entirely would risk civic confidence and endanger stability, as values would not be reflected. This would also deny opportunities to shed light on miscarriages of justice.

Public opinion has had massively positive impacts in justice; such as with the MeToo and Times Up movements. When legal mechanisms to prevent and expose sexual violence proved inadequate, the movement stepped in. This “upended the public conversation about women’s issues… and elevated the global consciousness surrounding the obstacles women encounter”.  The ability for many to speak on social platforms, led to reform and awareness in ways the courts could not do.

Public opinion can be argued to rightly substitute a criminal trial, where the system has failed victims and delivered a worrying message to society. This was seen in the public outcry following the Ulster rugby players case. Multiple men were charged with rape but discharged without conviction, despite harrowing evidence and explicit messages between the players. Following public condemnation of the players’ actions, the men lost their contracts despite their not-guilty verdict. Public sentiment outweighed the ruling of the court; and ultimately the people decided their fate. It is widely believed that “their sacking represents a communal decision that women shouldn’t be treated as they [the players] treated women. It tells other men that they no longer have the license to make such comments, to commit such acts”. The court of public opinion worked for the survivors in a way the justice system could not. However, this leads to difficult questions about the presumption of innocence in situations where the evidence is not as clear cut.

Those accountable for shaping public opinion must take responsibility in doing so. Spouting unsubstantiated allegations and myths about the justice system, endangers the very processes designed to protect society. Regulation of comments sections online, and informed reporting would do wonders for both public knowledge and trust in justice procedures. However, blindly following the law without proper, legitimate discussion is a dangerous exercise. A balance must be struck. The law must progress, but along informed lines, rather than in response to precarious speculation by uninformed but inflammatory online commentators.

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Featured image sourced from: www.triplem.com.au/news/coffs-coast/update-bail-refused-for-73-year-old-man-in-coffs-harbour-court

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