Friday, June 17, 1998


Trial by fire

By Mark Green

As a young boy, I learned the difference between a campfire and a bonfire. The former is useful for cooking and warmth on a cold night in the outdoors. The latter consumes more firewood than is practical to gather and is largely wasteful—it generates more heat than light.

We are fortunate to live under circumstances that provide ready access to information about the significant events of our time. Our challenge, as “information consumers,” is to discipline our hunger for news so as to foster more light than heat.

The challenge appears keenly in our consideration of “high profile” criminal trials.

Our democratic society assures—and relies upon—a free press to inform us of the activities of our government. Our criminal justice system relies for its legitimacy, in part, on our collective consensus that it will return fair and largely correct results. The system itself is uniquely democratic in its form. The notion of a trial by a “jury of one’s peers” is typically American in its rejection of the secret British Star Chamber, and its belief that ordinary citizens may appropriately introduce common sense into the determination of justice.

Though reflective of its democratic roots, our system of justice is nonetheless removed from the realm of the baldly political. Judges are typically appointed, rather than elected. Jurors receive detailed and precise instruction regarding the manner in which the law requires them to weigh and apply the evidence they hear. The evidence they hear is limited by precise and finely developed rules, designed to prevent consideration of information that is unreliable, or is more prejudicial than relevant. Among the many admonitions jurors honor, they do not discuss a pending case with anyone else—even other jurors—and they suspend judgment until all of the evidence is in.

The system is stressed when exposure of a particular trial sparks a bonfire of public interest, as in the recent murder trial of Louise Woodward. It is an unfortunate reality that the publicity surrounding such a trial contributes directly to the difficulty of managing the proceedings to a satisfactory outcome. As we think about the trial, we must also remember the limitations of the information on which we rely for our viewpoint. News accounts of complex events often obscure or misstate important nuances in an effort to reach—or attract—a mass audience.

At a certain level, the ironies can be darkly comic. A news reporter breathlessly asks a juror whether manslaughter might have been the verdict, had it been an option, blithely ignoring the fact that neither has the benefit of instruction on what constitutes manslaughter. Talk show callers rail against the unfairness of a trial in which jurors must have been tainted by pre-trial publicity, and then proceed to state with certainty their knowledge of the correct result (derived, though it is, solely from news media, commentary and all manner of unreliable sources). Mere months after the death of a princess, paparazzi pursue a freed felon, circling like moths around the flame of her fame.

It is imperative that we examine criminal justice proceedings on a regular basis, to consider both the efficacy of the system and the propriety of outcomes in individual cases. But it is at least as critical that we conduct our examination in a measured and rational manner, and not out of reaction to ill-formed perceptions of particular events. Stated another way, let us consider the lessons of the Woodward trial by the cool light of a candle or a campfire, and not in the melting blaze of a bonfire.