The Right Not to Know (Extract)

By GABRIEL WEIMANN
Extract from an article in Issue 9, August 18, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Report click here. While Prime Minister Ehud Olmert is under investigation on suspicion of a number of counts of corruption, and transcripts and even videotape of the police interrogations of him and his associates have been leaked to the media and published in full, leaking - by both the prosecution and the defense - of such confidential evidence, including documents and photographs, is by no means new to Israel, but it has reached new peaks, or depths, in the Olmert cases. Moreover, lawyers and their clients in this and similar cases are making increasing use of media advisers, publicists and professional spokesmen to sway public opinion before and during trials. Such phenomena are a major threat to the judicial process. The result is a kind of mock trial conducted by journalists, interested parties leaking information, defense counsel, as well as police and prosecution, who are also drawn into the confrontation in the media. In contrast to due process of law, presided over by professional judges acting in accordance with the laws of evidence in full transparency, the media process is not guided by the norms of proper procedure, but is subject to the temptation to partial and biased leaking and appearances loaded with spin and gimmicks by advocates turned publicists. The media can condemn a suspect even before the prosecution decides whether he should be indicted or not, let alone before a court decides if he is guilty or innocent. Moreover, the media trial has a damaging effect on the actual legal proceedings, once they get under way. Former Supreme Court Justice Mishael Cheshin admitted at a conference at Haifa University that, like any other person, he was influenced by the media. Judges are supposed to be immune to external pressures but trials by the media are liable to exert pressure on them, as indicators of public opinion and social trends. It is difficult for judges, as upright as they may be, to block out their social environment, as reflected by the media. What's true for judges is even more so for witnesses. Publication of prejudicial material in the media before a trial could influence them and lead to coordination of testimony, disruption of the investigation and distortion of the evidence that they are to give in court. Prior exposure to media accounts of pre-trial investigative material, or even testimony in court, enables witnesses to know in advance what other witnesses have said. The media play along, eagerly, with the leakers and the spin-masters. The dramatic, exclusive stories that the latter feed score points for the former in the ratings game. Tough competition between the tabloids and between the TV channels makes them even more vulnerable to manipulation: getting sensational material in exchange for playing it prominently and in a way sympathetic to the provider. How can these pernicious processes be stopped before they cause irreparable damage to Israeli justice? In the United States, a degree of protection against trial by media has been achieved through the use of gag orders (or suppression orders). These are employed in certain cases, where there is a fear of distortion of the judicial process, especially where jury members may be influenced, to prevent the publication of evidence or the appearance of parties to the trial in the media, before the entire court process has ended. In opposing intervention of this nature, the principles of "the public's right to know" and "freedom of information" are generally brandished. Indeed, attempts to infringe on the freedom of the press and its right to report on judicial proceedings must be fought. But the public also has a right not to know. Dr. Gabriel Weimann is a professor of communications at Haifa University and the author of six books on media and communications. Extract from an article in Issue 9, August 18, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Report click here.