Media Sociologist, Masaryk Univerzity Brno

Marína Urbániková

The relationship between the media and the justice, especially the criminal justice, balances on a thin line between love and hatred. They need each other but at the same time they blame each other of too much secrecy, unintelligibility, and vagueness (on the part of the justice), or of superficiality, simplification, and inaccuracy (on the part of the media). But why is it important for this relationship to function, and what specifics information about criminal proceedings has for both parties?

The media and the justice should not by any means be enemies, despite occasional clashes, especially because their smooth cooperation is in the interest of the whole society. The general public wants to be informed, and it should be informed, about significant trials and about what is going on in the justice system in general. Metaphorically speaking, because the court rooms have a limited capacity, the main mediator between the legal system and society is the media. The aim of my presentation is to sum up why it is important to speak about the processes in the justice system (Chapter 1), describe selected mechanisms of media operations (Chapter2), and the public position and expectations of the justice system (Chapter 3), then to point out selected problems of information about criminal proceedings by the media (Chapter4), and based on that context to formulate some recommendations for judicial officials (Chapter5).

1. Why Is It Important to Inform about the System of Justice?

Informing the public is important for several reasons. First, people must know what happens to those who violate the law, not only because of the feeling of security and social stability (especially in criminal proceedings it is evident that key social norms and values have been violated, and the public needs to see a remedy), but also because of deterrence of other possible perpetrators. That is to say that people should know that the system functions, and they do not have to be afraid, they must know and also see that the judiciary will punish the perpetrators effectively and fairly, that it will protect the innocent, and that it is able to reliably differentiate between those two categories.

Information and transparency are important also for enhancing public trust in the justice system. Namely, if the public does not know how the judiciary functions, who and how makes decisions, and it does not understand how it should be proceeded in concrete cases, it can hardly trust the result. Public trust is of key importance for the acceptance of concrete court decisions, for the respect of the legal system (if the public does not trust the justice system, it will seek other ways to solve disputes), but also for the protection of the judiciary from political influence (if people do not trust the justice system, they will not support it in case of a political attack), and in the broader sense for the functioning of the social system and the political establishment.

For these reasons it is not enough to only administer the justice; the administration of justice must be seen/visible. In the past, perpetrators were punished on the square in public, and to say it really very simply, today it is the media which serves this purpose.

2. What Can Be Expected from the Media and Journalists?

To better understand how the relationship between the judiciary, the media and the public works, the judiciary should consider the main mechanisms of media operations, and public expectations of the legal system.

Primarily, what can the judges, or public prosecutors expect from the media and journalists? Who is likely to contact them to ask for an interview? According to a representative research among the Czech journalists’ community, a typical journalist is a 38-year-old man with a right to liberal political orientation (that is younger and more rightwing than his colleagues in Western Europe).¹ About two thirds of journalists have university education, but only a fraction of them are members of a professional journalistic organization, and that makes it more difficult to apply self-regulation in breaching ethical rules, leading a professional discussion about controversial professional issues, or in possible further education, for instance in the judicial issues.² Moreover, most journalists are not specialized in a specific field.³ That means that you cannot automatically expect that a specialized journalist would come to the court or the public prosecution office. There are of course exceptions. Therefore, it is even more important to be able to summarize the decision and the justification in a clear and simple form. Czech journalists work 48 hours a week on the average⁴, which means that most probably, they will have very little time for their report, and judges and public prosecutors can only benefit from this situation, if they make the journalists’ work easier and prepare comprehensible handouts for them.

It is also good to remember what the journalists’ role entails. They themselves consider their most important role to inform the public, to disclose problems, and to criticize the power.⁵ Therefore, we should not expect that they would want to report on dozens of routine cases which are resolved in a fast and solid way, on the contrary, they will be interested almost exclusively in problematic cases . The mission of journalists is simply to be a watch dog of the power, including the judicial power, and not to celebrate it. On the other hand, we should not be too much worried that they would approach the judiciary (or any other institution) a priori with a certain political agenda; only a very small part of journalists consider influencing the public or political developments important.⁶

Apart from the main characteristics of journalists and their perception of their social role, it is also important to take into account the fundamental principles of the media work. Journalists decide every day what events will be turned into the news, and they do so on the basis of certain stable, although not by far always, reflected criteria, that we call the values of news coverage.⁷ The key news coverage values include conflict and negativity – they attract the attention of the public and consequently the media (in English this media principle is briefly expressed as “if it bleeds, it leads”).⁸ They are usually the basic aspects of criminal proceedings, especially in cases like murders and rapes, assaults, thefts, mugging or frauds. All of them violate the basic values and norms of society (negativity), where two sides, a culprit and a victim, stand against each other (conflict). Generally speaking, we can explain human inclination to watch negative and conflict news by the basic need to get oriented. Namely we are historically programmed to sharpen attention when we notice signs of threat. We must be informed about the threat, so we know how to respond quickly: therefore, we are prone to pay significantly bigger attention to bad news than good news, and the media is aware of it.⁹

Criminal proceedings are also often linked to other significant values of news reporting, such as drama, emotions, and human stories. Other key values of news reporting is the popularity of people related to the given event, and therefore, even a banal case can attract the attention of the media, if it concerns a celebrity. The same holds true of obscure and curious cases even though they are not substantial and concern common people: as an American journalistic aphorism has it, it is no news if a dog bites a man, but if a man bites a dog.

3. What Does the Public Expect from the Justice?

Besides the basic mechanisms of media operation, it is good to take into consideration the expectations and positions of the public when thinking about how to best inform about criminal proceedings. The public expects a fast and fair remedy of the situation, and also protection in a broader sense.

However, the situation gets complicated when most citizens of the Czech Republic do not feel well informed about the functioning of justice, and they assess their knowledge as low or very low (66 %). That underlines the necessity to explain things clearly and in a comprehensible way.¹⁰ In addition, in the past ten years, only half of the citizens have not come in contact with courts or have a close relation to who has this experience.¹¹ Due to little personal experience, a big part of the population forms their position on the justice system on the basis of its media image, especially based on a small number of closely watched cases and the behavior of top judicial personalities.

It is evident that from the viewpoint of the public it is important to not only announce the result in a comprehensive and convincing manner, but also to explain the decision and possible punishment. The empirical social-scientific research shows that subjective evaluation of the legitimacy of the judicial system is not primarily derived from the evaluation of the result (substantive justice), but from the evaluation of the procedure (procedural justice).¹² It is influenced by the fact how much the public perceives the court decision as fair (whether it is transparent, neutral, without outside influence), and how much it perceives the approach to individual parties of the dispute as fair (for instance, respectful behavior, possibility to deliver his or her version of events, or an equal approach to both parties). In other words, there can be cases when the result of a criminal proceeding is not yet known, but the proceeding itself has such a form that part of society will have a problem to trust in its fairness, whatever the decision may be.

Furthermore, it is good to take into account that the public is a quick judge and is inclined to automatically consider the suspect, the accused or the defendant, almost guilty. It is not only because of a generally low legal consciousness, but also because the media and the public are prone to take the version about criminal proceedings from the police or public prosecutors because they consider them trustworthy representatives of the state power. Journalists often depend on official sources (that is credible sources) when informing about criminal proceedings; law enforcement bodies are only one part of the dispute and therefore, information asymmetry can arise. No wonder that possible acquittal in closely watched cases can result in a kind of disappointment of citizens and an impression that the system of justice has failed when it lets “the culprit” free – and that is why it is necessary to exercise restraint when informing about criminal proceedings, and not to create high expectations which then lead to disappointment.

Besides being a quick judge, the public is also a strict judge. According to the international research¹³ people usually think that the imposed sentences are too low, especially in serious crime cases, and therefore it is necessary to convincingly explain the extent of the sentence.

It should be noted that justice is generally successful in fulfilling the expectations of the Czech public, which is evident in the rising trust in courts, or in a high prestige of the judicial profession. For example, according to a regular representative research conducted by the Center for Public Opinion Research (CVVM) at the Sociological Institute of the Academy of Sciences of the Czech Republic, the share of people who trust judges rose from 28% in the beginning of the 1990s up to 58 % in 2019.¹⁴ Moreover, the public considers the judicial profession one of the most prestigious. According to the CVVM it ranks among six most respected professions (besides doctors, nurses, or teachers), and this high prestige is long lasting and stable.¹⁵ Moreover, in 2019, 50 per cent respondents trusted the Prosecutor General’s Office, 35 per cent felt mistrust, and the remaining 15 per cent had no opinion.¹⁶ If we speak generally and more broadly about trust in the judicial and legal system, the share of those who trust it is a little lower: according to the Eurobarometer research in 2019, 47 % respondents trusted the Czech judicial/legal system.¹⁷

4. Selected Problems of Informing about Criminal Proceedings: Presumption of Innocence in the Media

We can see that the relationship between the judicial system, the media, and the public in the Czech Republic generally functions well, the indicator of which is a rising public trust in the legal system. It obviously does not mean that some friction would not occasionally appear between the justice and the media. As regards the media, one of the main problems in criminal proceedings is the observance of presumption of innocence. It may seem a simple principle, under which everybody should be considered innocent unless lawfully sentenced for a crime. But how to achieve it in the media, and why and where the media makes mistakes?

Presumption of innocence does not mean that journalists should not inform about the case and suspects – if it were so, we would not know anything about the Stork Nest case to this day, or about the Rath case or the Nagyova case. The media can describe a criminal proceeding, but they cannot present the information of the prosecution as facts, make up events, pronounce evaluative judgements, or create the impression of guilt. It is the last point that is problematic because it does not imply a simple stating of guilt (for instance, that a person is guilty, or is a murderer, a thief, a profiteer, etc.), but it also implies an indirect semblance of guilt. To this end, the media uses a wide range of expressions, such as various metaphors, and adjectives, sounds, or pictures.

How can the media comply with the rule of presumption of innocence in practice? The guidance is provided for instance by journalistic codes of ethics. The Czech Television Code is especially detailed in this respect. It obliges under all circumstances “the duty to abstain from statements which would imply that the suspect (the accused) is already lawfully sentenced“.¹⁸ Furthermore it stipulates that ”if Czech Television informs about a suspicion that a certain person committed a crime for which the person was not yet lawfully sentenced, it will also air the position of the suspect (the accused), if it is possible to obtain it or, in view of the ongoing proceeding make it public. The head of the newsroom appointed by the editor-in-chief shall decide about non-publication of the statement of the suspect because it was not possible to obtain it or make it public.“¹⁹

The Czech TV Code also stipulates that reports or information about criminal activities should refrain from “inciting or supporting moods aimed at revenge or unlawful ostracization of suspected or sentenced persons“ and also not to air ”programs the content of which would exert pressure on judges to decide about guilt or sentence in a certain way.“

A more detailed interpretation of what the media can or cannot do when informing about criminal proceedings from the point of view of presumption of innocence has also been brought by the court. For instance, the Mafra publishing house had to apologize to a man about whom it wrote as a “pimp” and “member of a gang of pimps”, at a time when he was in the position of the accused. The Supreme Court stated²⁰, that the press distorted the information and pre-empted the court decision:

As long as the sentence does not come into legal force, it will not be possible to refer to the person, against whom a complaint has been filed, or who has been confined to custody, against whom a criminal proceeding has been started, or about an accused or unlawfully sentenced, as of a perpetrator of a crime. Therefore, it is also inadmissible to label that person a criminal, a gangster, a swindler, a rapist, etc. At this stage it will be necessary to refrain from any deliberations in the news which would pertain to the guilt of that person because guilt is a matter of assessment which belongs exclusively to the court.

Verdict of the Supreme Court 30 Cdo 1413/2012, dated 15 November, 2012

In this respect the media has a big responsibility towards the accused because it can have a significant impact on their lives, but also towards the public because if the accused is acquitted the public can get the conviction that there are unpunished criminals among us, and that weakens the confidence in the judicial system.

A sad example of the consequences of the media disrespect of the presumption of innocence is the recent case of nurse Věra Marešová, which I hope will teach journalists a lesson. The nurse was charged with six murders; according to the prosecution she administered high doses of potassium to sick old people. She was twice in detention where she spent about one and a half years, and in January 2016, the regional court acquitted her. However, some media did not respect presumption of innocence in the course of the proceedings, and repeatedly described her as “Nurse Death”. For instance, the Blesk daily released articles titled „She Killed without Compassion. A Nurse from Rumburk Acknowledged It Was Not Euthanasia” (3 September 2014), or „Why Did Nurse Death Kill? She Hated Patients! “(27 November 2014). These dailies or weeklies created the impression that it is sure that the nurse committed murders and presented the indications of the prosecution as facts. It had a fatal impact on the life of Věra Marešová, including psychical and physical effects, and the necessity to move from the city where she lived for a long time. She described these consequences at the court as follows: „When I travelled by bus, people pointed fingers at me. In the line at the post office people kept distance from me because nobody wanted to be near me. I did not go out if I did not have to.”²¹ Věra Marešová then sued out 900 thousand CZK from the Czech News Center Publishing House (publisher of the Blesk or Aha! dailies). She also sues other two publishers and NOVA TV.

5. …What Implications Has It for the Public Prosecution and the Courts?

In conclusion and in view of what I mentioned above, several recommendations can be made for public prosecutors and courts when communicating with the media about criminal proceedings. What can they do for a smooth cooperation with the media and an adequate information for the public?

Primarily, journalists should not be regarded as enemies: they just do their work which is important to society (they inform the public and control the power. We should also remember the often-repeated advice to communicate, or not to be silent, not to hide, and not to run away. Non-communication is usually not a good way because it can imply that it is necessary to conceal something, or that you are not sure about your decision. A proactive approach is also important because of the fact that if the major actors do not deliver their own position, the media will address other speakers. It is especially not desirable in closely watched cases that someone else would interpret the case because it may increase the risk of possible bias, inaccuracy, or falsehood. If it is not possible to provide information, it is always better to explain why rather than use the simple “no comment.” Moreover, it is good to think about a mechanism to set the agenda: the first statement on the issue frames and forms it, and if someone else sets the theme instead of public prosecutors or the courts, and does so in a way that suits him, the judicial bodies are simply doomed to reaction. In especially serious cases which have a potential to attract big media attention, it is recommended to have a crisis plan in case of a leak of information.

Journalists will appreciate it if judicial bodies show understanding for their work regime and pace, and a de facto never-ending deadline, and make their work easier if possible, by providing key information in time or prepare background material for them.

We should be aware of the fact that the credibility of a message depends on perceived credibility of speakers which includes not only their expertise, but also their personal credibility. Therefore, it goes without saying that as regards the public perception it is not enough to be virtually independent but also to appear so. Another rule relates to the above described major significance of the procedural justice: public prosecutors and judges should explain their decisions in a convincing and clear manner, because if they only announce the extent of sentence (or on the other hand its absence), the impression of inadequacy and injustice can easily arise. It is therefore necessary to prepare a brief explanation in the form of several (intelligible) sentences.

Notes