Summary of report
The nature and scope of the project
The project to which this report relates is a collaborative research project of the University of New South Wales and the Law and Justice Foundation’s Justice Research Centre. The Australian Research Council provided additional funding.
In 41 selected criminal trials held in NSW between mid-1997 and mid-2000, the jurors, the judges and the principal counsel on both sides were asked to participate in structured interviews, conducted after the trial was concluded. The interviewees were asked about their impressions of how prejudicial media publicity associated with the trial might have affected the perceptions of the jurors and the verdicts reached. They were also asked about a number of associated matters, such as what in their view were the principal issues for determination by the jury and what steps, if any, were taken within the trial process to prevent or mitigate any prejudice potentially arising from publicity. Independent research into the scale and nature of the media publicity associated with each trial was also carried out and where possible the transcripts of the trial proceedings were studied.
The underlying aim was to complete a set of 41 case studies, from which insights into the effects of prejudicial publicity on criminal trial juries might be obtained. As far as the researchers are aware, this particular methodology has not been used in any previous investigation of this topic, either in Australia or overseas.
In determining the range of applicability of the conclusions reached, a number of important background features of the system of administration of criminal justice in NSW must be borne in mind. These include the following:-
- The restrictions imposed by the law of sub judice contempt on the dissemination of potentially prejudicial publicity by the media, notably in the period immediately preceding a criminal jury trial and during the trial itself.
- The availability of ‘remedial measures’ to mitigate possible prejudice, such as a judicial warning to a jury to avoid or ignore media publicity and a decision to shift the venue of a trial to a location suitably remote from the place of commission of the alleged offence.
- The significant periods of time typically elapsing between the events most commonly attracting substantial specific publicity – namely, the commission of the alleged offence, the arrest and charging of the accused and the committal proceedings – and the commencement of the jury trial itself.
To the extent that these features are not present in any other common law jurisdiction, whether in Australia or overseas, the conclusions reached in this research must be treated as a less reliable guide to the situation in that jurisdiction.
Thirty-eight of the 41 chosen trials attracted some degree of publicity, appearing before and/or during the trial, which related specifically to the offence and/or the accused. These included 25 trials which also attracted ‘generic’ publicity, that is, publicity relating to some general issue raised by the case. The remaining three trials were the subject of generic publicity only. Thirty-five of the 41 trials took place in metropolitan Sydney and the remaining six in cities or towns outside Sydney. Thirty-one were held in the Supreme Court and the remaining 10 in the District Court. In the majority of the trials (30), the principal offence charged was unlawful homicide.
One particular group of 25 trials within the chosen group – namely, those trials which were held in metropolitan Sydney and attracted a moderate or high level of specific publicity – constituted a significant majority, possibly approaching two-thirds, of all the comparable trials occurring between mid-1997 and mid-2000. By contrast, in other categories of case, such as non-metropolitan trials and trials attracting generic publicity only, the numbers studied were very small and could in no way be considered representative.
Before research commenced, the Attorney General authorised the researchers under section 68A(3) of the Jury Act 1977 (NSW) to solicit information from jurors about their deliberations for the purposes of the project. Letters were sent to jurors from the Sheriff’s Office on the researchers’ behalf. The only jurors interviewed were those who chose of their own volition to contact the researchers. Pursuant to the terms of the Attorney General’s authorisation, and to undertakings given to the participating jurors, neither the identities of the trials studied nor the names of jurors are to be disclosed.
In all, 175 jurors, representing a response rate of 4.3 jurors per trial (36 per cent), were interviewed. Forty-one of these, with their prior consent, provided a follow-up interview, conducted in order to clarify what they had said earlier. All interviews with jurors were conducted by telephone. The response rates for judges, prosecution counsel and defence counsel (measured in numbers of trials) were 88 per cent, 100 per cent and 90 per cent respectively.
In the analysis of the data obtained and in the formulation of the major conclusions, a key distinction was drawn between two fundamental questions:-
- The incidence of ‘jury recall’ of publicity – that is, of one or more members of a jury both encountering (directly or indirectly) relevant publicity and remembering it at the time of the trial.
- The incidence of ‘influence on jurors’ – that is, of publicity within the range of ‘jury recall’ (i) exerting an influence on the perceptions of one or more members of the jury, and (ii), as a possible but not a necessary consequence, having a determinative effect on the jury’s verdict.
The principal findings on the incidence of jury recall of pre-trial publicity were as follows:-
- Jurors chiefly recalled media reports of the commission of the alleged offence (this occurred in 78 per cent of the trials in which reports were in fact published). They less frequently recalled reports of the arrest of the accused (50 per cent). They recalled reports of committal hearings or other pre-trial proceedings even less frequently (38 per cent). Recall of pre-trial specific publicity in other categories was piecemeal: for example, a prominent ‘one-off’ media story about an accused, might, but not necessarily would, be recalled. Jury recall was most frequently of general features of the relevant publicity rather than of precise details. In 53 per cent of the trials in which some form of pre-trial publicity was recalled by at least one juror, the publicity was discussed in the jury room. Jurors were frequently aware of broad themes canvassed in generic publicity occurring pre-trial, but did not usually recall particular items of such publicity.
- There are reasons for believing that counsel and, to a lesser extent, trial judges tended to over-estimate the level of recall of these matters. But in five instances, two of which involved material on the Internet, a jury became aware of publicity which was not known to the judge or to counsel.
- By way of significant exception to the foregoing generalisations, jurors were more likely to recall pre-trial publicity – for example, reports of pre-trial proceedings – in three situations. These were when (a) it related to accused people who are independently well-known in the community; (b) it related to offences committed in the area where they live; or (c) they did not encounter it until after the trial began. Other familiar explanations for pre-trial publicity being recalled – for example, that it appeared unusually close to the start of the trial or was especially prominent – were also discernible.
Despite judicial instructions, one or more members of a jury were likely to follow newspaper coverage of the trial itself. This occurred in all of the 34 trials that received coverage, even though in a number of them one or more other members of the jury expressed disapproval. In 32 of these 34 trials, the coverage was discussed, at least briefly, in the jury room. Other publicity during the trial, such as television or radio reports or commentary or relevant generic publicity, was less likely to be noticed than judges or counsel seemed to expect.
Influence on jurors
In this context, the media publicity usually treated as relevant was that which, as far as could be ascertained, had been recalled by the relevant jury. As the conclusions under the previous heading indicate, this was usually less in quantity than the publicity actually associated with the case.
In the 38 trials which were attended by specific publicity, very few of the 167 respondent jurors considered that this publicity may have influenced them (only four per cent, with a further 13 per cent not responding to the question) or their fellow-jurors (seven per cent, with a further 12 per cent not responding). The equivalent figures for generic publicity were slightly higher. The expectations of counsel, particularly defence counsel, and of the trial judge were that influence would have been more prevalent.
These assertions by jurors were not taken at face value. Instead, they were examined in the light of other factors tending to suggest whether or not individual jurors, or in addition the verdict itself, had been subject to media influence.
These factors included the following:
- The existence of significant disagreements in the course of the jury’s deliberations.
- The jury reaching a verdict by way of compromise or ‘horse-trading’.
- Fellow-jurors not participating actively in discussion.
- The opinions of the trial judge, of counsel and of the researchers (as readers of the transcript of proceedings where possible) regarding what were the principal issues that the jury should have addressed in arriving at a verdict.
- The opinions of ‘professional assessors’ – that is, the trial judge, counsel and, if the issue was considered in appellate proceedings, members of the NSW Court of Criminal Appeal – on two matters. These were (i) the overall standard of performance of the jury, including particularly whether the verdict was ‘safe’, in the sense of being justifiable on the evidence, and (ii) whether the evidence in the case was such that a verdict could easily be reached.
- The weight and the extent, if any, to which the publicity was biased for or against the accused.
- The existence of any factual material in this publicity that was not replicated in the evidence.
Many of the resulting findings as to the incidence of influence on jurors are inevitably based on subjective evaluations. The principal findings are as follows:-
Other matters investigated
- Jurors often believed that newspaper coverage of their trial was inaccurate and/or inadequate. In 22 (65 per cent) of the 34 trials in which there was jury awareness of coverage, one or more jurors said this in their interview even though the issue was not specifically raised by the interviewer. In all but four of these, that is, in 18 (55 per cent) of the 34 trials, the inaccuracy or inadequacy was discussed in the jury room.
- Juries were equally successful in identifying the relevant issues regardless of whether the publicity was negative or positive towards the accused. Also, the quantity of negative publicity did not seem to make a difference to the proportion of verdicts that were ‘safe’.
- Where the evidence presented in court was strong in favour of guilt or clearly insufficient to establish guilt beyond reasonable doubt, so that the verdict was one which could easily be reached, juries were comparatively successful in identifying relevant issues and in delivering a ‘safe’ verdict. They were less successful in trials where the evidence was equivocal. In trials in the latter category, therefore, there was greater reason to believe that publicity may have affected the verdict.
- In 30 of the 40 trials in which the jury was required to deliver a verdict, all of the ‘professional assessors’ considered the verdicts ‘safe’. In a further eight trials, the verdicts were ‘possibly unsafe’, in the sense that defence counsel, or in one instance prosecution counsel, considered that it was not supported by the evidence. In the remaining two trials, the verdicts were considered ‘unsafe’, on the grounds that two or more of the ‘professional assessors’ held this opinion.
- In three of the 40 trials, it seemed likely that publicity was determinative of the verdict, though in a further seven trials, it may possibly have been determinative. Publicity was found to be likely to have influenced individual jurors, but not the verdict, in a further 11 trials, and it may possibly have had this effect in a further five trials. It was unlikely to have had any influence on the verdict or on individual jurors in the remaining 14 trials.
- In the two trials in which the verdict was ‘unsafe’, it was in line with the tenor of surrounding publicity. In one of these, involving an acquittal, it seemed likely that publicity was determinative of the verdict. In the other, this was assessed as ‘possible’.
- In the eight trials in which the verdict was ‘possibly unsafe’, it was again in line with the tenor of surrounding publicity. It seemed likely in one of these that publicity was determinative of the verdict. This seemed possible in a further three trials, including one in which the publicity was generic only. It seemed possible in a further two of these eight trials, but unlikely in the remaining two, that publicity, while not determining the verdict, exerted an influence on one or more individual jurors.
- In 12 of the trials in which the verdict was ‘safe’, it was at odds with the tenor of the publicity. It seemed likely in six of these, possible in a further one, and unlikely in the remaining five, that publicity, while not determining the verdict, exerted an influence on one or more individual jurors.
- In the remaining 18 trials in which the verdict was ‘safe’, it was in line with the tenor of the publicity. It seemed likely in one of these that publicity was determinative of the verdict. This seemed possible in a further three trials. It seemed likely in a further five of these 18 trials, possible in a further two and unlikely in the remaining seven, that publicity, while not determining the verdict, exerted an influence on one or more individual jurors.
- In five trials, unbeknownst to counsel or the judge, some or all of the jury discovered that the accused had previously been convicted of or charged with an offence similar to that now faced. The juries dealt with or ‘managed’ this prejudicial information with varying degrees of success. For example, in one trial, where the verdict was ‘possibly unsafe’, this discovery apparently created prejudice in the minds of some of the jurors, resulting in conflict within the jury and a compromise verdict. In another, where the verdict was ‘safe’, one juror ensured that another, still undecided, was not told this information until the verdict was reached. In a third, where the verdict was also ‘safe’, the jury did not believe the informal source who provided the information, and apparently put it out of their minds.
The background role played by the legal rules restricting media publicity for current and forthcoming trials was examined in general terms. More specific attention was paid to the use of remedial measures in the 41 trials investigated.
The use of change of venue was examined with reference to nine cases where the alleged offence was committed outside metropolitan Sydney. In three of these, there was no change of venue; in four, the change was only ‘partial’, in the sense that it did not reduce greatly the prevalence of publicity emanating from the area where the offence was committed; in the remaining two there was a ‘total’ change. Amongst the seven ‘partial change’ and ‘no change’ cases, there was a higher incidence of jury recall of pre-trial specific publicity than within the total range of trials investigated. There was also an above-average incidence of cases where it appeared likely that publicity influenced the perceptions of individual jurors, if not also determined the verdict. But the numbers involved are too small to support general conclusions.
In six cases, defence counsel made a pre-trial application for a permanent stay of proceedings or for an adjournment on the ground of pre-trial specific publicity adverse to the accused. In only one of these was the application successful. In all of them, the verdicts were ‘safe’. The verdicts were also ‘safe’ in three cases where defence counsel applied unsuccessfully for a discharge of the jury on the ground of prejudicial publicity appearing during the trial.
In addition, opinions were obtained from the judges and counsel interviewed as to the effectiveness, in general terms, of existing remedial measures and legal restrictions on publicity. They were also asked if they were ever concerned that a jury might be unduly influenced by generic publicity, and if so, what could be done about it. Overall, the responses of defence counsel displayed significantly less confidence in the current situation than those of the judges or of prosecution counsel.
The interviews with jurors also touched on several topics that did not form part of the range of issues specifically investigated. These topics included the following:
- The process, which was sometimes difficult, of reaching a unanimous verdict. In 61 per cent of the trials studied, unanimity was attained comparatively easily; in 22 per cent, a majority group had considerable difficulty in persuading the remaining jurors to agree to a verdict; in 17 per cent, the verdict was reached by compromise. Some impressions were gained of the impact of judicial exhortations to the jury to try to attain unanimity. The requirement of unanimity appeared generally to have compelled those jurors whose opinion ultimately prevailed to provide grounds to justify this opinion.
- Obtaining a sufficient understanding of the legal principles to be applied by the jury, on procedural issues and on the jury’s role. Some juries had difficulty understanding the judge’s directions, notably on the ingredients of manslaughter and on the meaning of ‘beyond reasonable doubt’. In some trials, there was confusion as to whether the jurors should take their own notes of the evidence, whether transcripts would be made available to them, and/or what was the precise role to be played by the jury.
- The experience of serving on a jury. For some jurors, the experience was very positive; in others, it provoked negative feelings such as frustration with fellow-jurors, stress and fear for their safety. Several jurors suggested that counselling or ‘debriefing’ would be beneficial after a long and stressful trial.
Given that high-profile trials were selected for study, the proportion in which the verdict was considered likely to have been ‘publicity-driven’ rather than based on the evidence was relatively small (eight per cent). In only one of these trials did the judge and counsel think that the verdict was 'unsafe', and it was an acquittal. In another, according to defence counsel the verdict may have been 'unsafe', though neither the prosecution counsel nor the judge held this view. This is the closest that any trial that we studied came to being a wrongful conviction brought about by the influence of publicity. In the third case, the verdict was considered 'safe'.
In a further group (10 per cent), it was considered possible only, rather than likely, that the verdict was ‘publicity-driven’. These include one guilty verdict that was found on appeal to be 'unsafe'. This was, however, a difficult case in which the jurors were comparatively successful in identifying the issues. They could simply have erred in their evaluation of complex evidence rather than deferring to the influence of publicity. In the remaining trials in this group, defence counsel was alone in considering the verdict to be ‘unsafe’. It is a matter of possible concern, however, that these included one trial in which the publicity was generic only.
In a number of other cases, evidence of influence on the perceptions of individual jurors was found, but the jury as a whole succeeded in dealing with, or ‘managing’, this influence so that ultimately it appeared not to be determinative of the verdict. In a few instances within this group, however, the jury arrived at a ‘safe’ verdict by the chancy and unpredictable route of a compromise, rather than by addressing the relevant issues fully and directly.
If it is appropriate to interpret these findings as demonstrating a relatively satisfactory level of resistance of NSW juries to publicity, this appears attributable chiefly to five causes. They are as follows:-
- On account of legal restrictions on publicity and the considered use of remedial measures, jurors are normally not exposed either (a) to pre-trial specific publicity which is both intensely prejudicial in content and published close to the time of commencement of the trial, or (b) to publicity during the trial which is intensely prejudicial.
- On account of these limits on the content and timing of publicity, jurors overall are not likely to recall pre-trial specific publicity, even in general terms, let alone in detail. This broad generalisation is a factor of major importance even though there are significant exceptions to it and even though it does not deal with generic publicity. But it has validity as a generalisation.
- While jurors are quite likely to track down at least the newspaper coverage of the trial itself, they are generally not vulnerable to influence from biased or incomplete coverage because they frequently identify, and at times are quite scornful about, the bias and incompleteness.
- A significant proportion of the juries discharge their duty, spelled out to them by the judge, to scrutinise the evidence carefully and, if necessary, at length. An important factor inducing them to do this is the requirement that their verdict be unanimous. Where this process is in fact carried out in their deliberations, any influence exerted by publicity on the perceptions of individual jurors is quite likely to be overridden by contrary evidence, or (if the evidence suggests the same conclusion as the publicity) to be superseded as a factor determining the verdict. In this sense, some juries, though by no means all, confront or ‘manage’ the publicity successfully.
- Both in this context and elsewhere, frequently jurors - individually and collectively - attain a significant level of independence in both thought and action. While this may at times lead them into pursuing irrelevant lines of inquiry, it helps to prevent them simply caving in to media pressure.
These relatively positive conclusions do not provide justification for wholly or substantially dismantling legal restrictions on publicity for criminal cases, because they presuppose the existence of these restrictions. They do however provide grounds for reconsidering specific aspects of the content and the application of sub judice
principles. They suggest also that changes of venue are often desirable, but should preferably be ‘total’ rather than ‘partial’. Finally, they suggest that judicial instructions to juries regarding publicity should encourage them strongly to trust their own capacity to recall and understand the evidence and the issues to be resolved, rather than any version of these conveyed expressly or impliedly by media publicity, specific or generic.
Further empirical research could usefully be conducted into the impact of publicity on NSW trials outside the range with which this project was primarily concerned: for example, on trials conducted outside metropolitan Sydney, or trials exposed to generic publicity only. Research into matters treated as ancillary to this project is likely also to be beneficial: for example, into the degree of individual juror commitment to jury decision-making or into practical difficulties experienced by jurors. Any such research should be consciously structured, as isolated interviews with jurors cannot reveal very much about likely patterns within the system as a whole.