Christopher J. Ferguson

Christopher J. Ferguson, PhD
Stetson University, DeLand, FL
cjfergus@stetson.edu

The issue of “trial by media” has come under some recent debate following explosive documentaries which alleged that celebrities Michael Jackson and R. Kelly committed heinous sex crimes against multiple victims. In full transparency, I haven’t seen either documentary, so I won’t comment on them directly. I have no reason to doubt their powerful narratives and their influence on viewers. But these documentaries have renewed interest in the issue of trial by media as to where they fit into a culture of due process which presumes innocence until proven guilty in a court of law. Do accused individuals deserve less consideration in the trial of public opinion? This is an issue I consider to some length in my undergraduate text on media psychology (Ferguson, 2016).

I think “trial by media” would be less of an issue if we could be sure that those “under trial” were all actually guilty. I am not saying either Jackson or Kelly are innocent and have no reason to doubt the accusations being made. Nonetheless, the courts have a high standard of evidence for a reason. More importantly news media, including the documentary format, is a historically unreliable source of high quality data.

People are undoubtedly influenced by the particularly horrid nature of the crimes Jackson and Kelly are accused of in the media. The Duke Lacrosse Case is a good example of how an initial implication of guilt in the news media can end up doing a lot of damage to the accused, even though the individuals involved in this case were exonerated. In this case, several white team members were accused of raping a black stripper at a party, although it ultimately appeared the accuser had significant mental health problems. The prosecutor was ultimately disbarred and charged with misconduct. However, initially many news outlets as well as Duke faculty wrongly assumed the accused were guilty (Block, 2016). But when considering trial by media it must keep in mind too that not all trial by media cases are sex crimes. Many cases are about other crimes. Judging whether trial by media is “fair” based on the most heinous crimes may itself be biasing.

In many cases, there is what I call a “follow-through failure effect” when news media covers a case when a defendant initially looks guilty, then drops coverage once the defendant is exonerated and the public never learns of that part.  This can occur when defendants are shown in news “perp walks” in handcuffs, looking guilty, and that’s all the public ever sees. Often the public never learns when the case fell apart, evidence surfaced to exonerate the accused, the defendant was found not guilty, or someone else was eventually convicted. This can leave a cloud of presumed guilt over an innocent person that can continue for life.

Sometimes even when there is follow-through, the impact can be negative. For instance, Richard Jewell, a security guard at the 1996 Atlanta Olympics was initially accused of a bombing incident at the event but was later exonerated. Although evidence against him was always shaky at best, he was hounded for a time by reporters who assumed his guilt (Sack, 2007). The high-profile nature of the crime may actually have helped him, resulting in a public clearing.

Trial by media can also inadvertently influence actual jury trials by polluting the jury pool (Otto, Penrod & Dexter, 1994). To be sure, judges and lawyers do look for bias by media, but it’s imperfect.

In many cases, a person’s reputation can be ruined for life by media insinuation of his or her guilt, especially when the person is not granted an opportunity to defend his or own reputation. This may occur in some cases where investigators and prosecutors judge a case to lack merit.

To be clear, I am by no means saying the criminal justice system is always (or even often) fair, nor that there aren’t plenty of victims who never see justice.  And trial by media could conceivably act as deterrence (though so could many other brutal, dubious tactics … separating children from families at the border likely has a deterrence effect on illegal immigration, but I’m doubtful this is a tactic most of us would want to sanction). But endorsing trial by media comes close to endorsing a kind of vigilante justice that seldom turns out well. Our criminal justice system certainly has problems, but there is no need to address those problems by creating a parallel process.  The criminal justice process does put emphasis on “innocent until proven guilty” and “reasonable doubt” for a reason and we all need to be mindful and respectful of due process even if we acknowledge the outcomes aren’t always what we want.

These are tough issues and there’s no perfect answer.  As a society, we need to do the best to ensure fair due process for the accuser and accused alike within the criminal justice system and keep media coverage fact-based to ensure the fairest possible outcome for the accuser and accused alike.

References

Block, J. (2016). 10 Years Later, The Duke Lacrosse Rape Case Still Stings. Huffington Post. Retrieved from: https://www.huffpost.com/entry/duke-lacrosse-rape-espn-30-for-30_n_56e07e33e4b065e2e3d486f7

Ferguson, C. J. (2016). Media psychology 101. New York, NY: Springer.

Otto, A. L., Penrod, S. D., & Dexter, H. R. (1994). The biasing impact of pretrial publicity on juror judgments. Law and Human Behavior, 18(4), 453–469. https://doi.org/10.1007/BF01499050

Sack, K. (2007). Richard Jewell, 44, Hero of Atlanta Attack, Dies. New York Times. Retrieved from: https://www.nytimes.com/2007/08/30/us/30jewell.html