National Association of Attorneys General
Rule of Law and the Role of the Media
Ermin Imamovic, Cantonal Prosecutor, Cantonal Prosecutor’s Office Zenica, Bosnia & Herzegovina; Chali Mbewe-Hambayi, Senior State Advocate, Office of the Director of Public Prosecutions, Zambia; Osvaldo Ordorica, General Director, Trial Division, Sonora Attorney General’s Office, Mexico; Louis van Niekerk, Senior State Advocate, Office of the Director of Public Prosecutions, South Africa; and Mary Williams, Assistant Attorney General, Office of the Attorney General of South Carolina
This is the second of four rule of law articles to appear in NAAGazette. They are the work of attorneys who participated in the June 2014 National Attorneys General Training and Research Institute (NAGTRI) International Fellows Program.
This group was asked to consider the role of the media in promoting the rule of law, especially in regard to ensuring fair prosecutions, open government and in bringing corruption to light.
The role of the media and the Internet in promoting the rule of law is a multifaceted issue. Authorities, including prosecutors, must recognize, respect, and treasure the power of the media. However, while transparency is essential to the rule of law, a criminal system cannot always be completely transparent. In order for the rule of law to be effective certain information must remain secret, such as the identity of a minor complainant in a sexual offense matter. Nonetheless, prosecutors can still use the media and the Internet as effective tools to promote the rule of law. Some aspects of the interrelationship between the media and the rule of law as applied to prosecutors are discussed below in more detail.
Sub Judice: Witness Protection, Reliability, and Credibility vs. Immediate Public Access
“The rule of law requires that fundamental rights, such as that of freedom of belief and practice, should be protected, but it does not require that they should be absolute.”
“The rights of the individual must be set against the rights of others, and that calls for the drawing of lines.”
- Tom Bingham, "The Rule of Law"
While the right to information is a strong one, there are certain situations in which access to information must be limited in order to promote the rule of law. This limitation is never more evident than during the course of an investigation. At this stage of the case, it will be the exception to provide information. At the trial stage, the enhancement of witness credibility and the assurance of the reliability of the evidence also weigh in favor of restricting media access. It is critical that witnesses base their accounts on their own independent recollections. The testimony they give cannot be tainted by information from an outside source or force. Witnesses must also feel free to speak honestly and without repercussion. Prosecutors should provide guidance to witnesses and investigators regarding any contact with the media. A good example of difficulties in prosecuting a case because of media interest in a trial was the South African prosecution of Oscar Pistorius. An extensive amount of domestic and international attention was given to this case, thereby requiring that the assigned prosecutors take appropriate measures to protect the case’s integrity.
Media as Educator and Ally: The Flow of Information from Prosecutor to Public
“The public prosecutor plays a vital role in ensuring due process and the rule of law as well as respect for the rights of all the parties involved in the criminal justice system.
“The prosecutor’s duties are owed primarily to the public as a whole but also to those individuals caught up in the system, whether suspects or accused, witness or a victim.
“Public confidence in the prosecutor ultimately depends on confidence that the rule of law is obeyed.”
- In the Matter of the Minister of Police v. Du Plessis, No. 666/2012 (CC 2013) at para. 29.
In order for a country’s rule of law to have legitimacy among its citizenry, there must be a system in place that people believe is going to address their concerns in a fair and just manner. To accomplish these goals, prosecutors can use the media as an ally in informing the public on the legal process, the rights of all parties, and the tools available for access to justice.
Below are some examples from our group, highlighting how the media may be an ally to prosecutors attempting to promote justice:
In Bosnia-Herzegovina, the Disciplinary Prosecutor’s Office in charge of disciplinary proceedings against judges and prosecutors throughout the country used the media, through Television and radio commercials, to inform citizens on how to report or initiate disciplinary cases with regard to judges’ or prosecutors’ misconduct.
Mexico had a similar experience as Bosnia-Herzegovina. Television and radio commercials informed the public concerning migrant rights so that any violations would be more widely reported and addressed. Another example in Mexico involved the use of professional advertisement campaigns to inform the public of Mexico’s transition to an oral advocacy system. The media has played an important role in setting expectations and informing the public of their rights under this new system.
Media Assisting to Facilitate the Prosecutor’s Agenda: The Flow of Information from the Media to Prosecutor
“Now you know. And knowing is half the battle.”
- G.I. Joe, Public Service Announcement
The media also plays a role in assisting prosecutors to develop an agenda. Media coverage of certain types of crimes can attract attention to topics that we prosecutors need to address. This may have a positive influence, such as when the media introduces an issue to a prosecutor. However, the prosecutor must use caution in reacting to media coverage of a particular issue. The media should not be permitted to dictate our priorities. Prosecutorial discretion must always be employed in determining where our efforts should be focused.
For example, in South Carolina, a case gained attention due to media coverage originating from a journalist involved with an animal rights group. Workers at a rural animal shelter were accused of utilizing unauthorized methods of euthanasia. As coverage increased, so did public pressure to bring criminal charges against the workers. Due to intense media pressure, the prosecution initiated an investigation through the South Carolina Law Enforcement Division and consulted veterinary experts. Upon reviewing the investigation and analyzing the potential charges, the prosecution determined that a criminal prosecution would be unsuccessful. Because the case was in the public eye, however, the prosecution still sought out a remedy to address any problems – a tactic never before used – that involved using a statutory provision allowing for the attorney general to intervene civilly. Ultimately, a cooperative agreement was reached involving the local government and the Humane Society which improved the shelter and monitored its operation. In this matter, media attention did divert resources but also prioritized a matter that may have gone unnoticed. Further, the prosecutors retained their own evaluation of the case, despite media pressure to take certain action.
Overcoming Negative Aspects of Media
“If it bleeds, it leads.”
- Media adage, multiple sources.
The media may focus on “sensational” stories. The tendency toward sensationalism is especially relevant in a system where criminal defendants are tried by a jury. Sensational headlines can lead to a trial by public opinion. Even in the civil law tradition, sensationalism may lead to public expectations regarding the trial’s outcome, which could, in turn, put pressure on prosecutors and judges. This extra attention from sensationalism and possible pressure on prosecutors and judges are antithetical to promoting the rule of law because all of these could undermine the judicial process. Moreover, a reduced belief in a just and fair system may result and the public may frequently be misinformed if all sides of a story are not published, thereby undermining a fair trial by tainting the potential jury panel. Sensationalized stories can also lead to public perception that crime is more rampant than it actually is. Prosecutors must interact with the media to ensure that it is educated on the consequences of reporting stories in such a fashion.
To illustrate, the case of the Boston Marathon bombing garnered intense media coverage with the public probably having already formed an opinion about a case that has yet to proceed to trial. One of the alleged suspects, Dzhokhar Tsarnaev, has already been convicted in the court of public opinion, so it is highly questionable as to whether an impartial jury can ever be found should his case go to trial.
The issue of independent investigative journalism was of particular interest to the African members of our discussion group. This type of journalism is a powerful tool that can help ensure the public interest is at the core of governmental activities. An independent media may not always be popular in a country that is plagued by government-involved corruption. Corrupt officials will, by any means, try to suppress all efforts to shed light on their illegal actions. For example, media bodies may face intimidation and oppression by the government. Offices are often vandalized and ransacked, and journalists and editors arrested and prosecuted on illegitimate charges. Thus, it can be said that media freedom and the right of citizens to information can only exist to the extent that the government and the politicians will allow. Red lights should flash when under the nebulous “national security interest” argument, the suppression and/or the flow of information are controlled by legislation.