Trial by media and witnesses

By Dr. Haezreena Begum binti Abdul Hamid

The term “trial by media” gained popularity in the late 20th and early 21st centuries, referring to the influence of television and newspaper coverage on an individual’s reputation, creating a widespread perception of guilt or innocence even before a verdict is reached in a court of law. “Trial by media” creates a reality shaped more by perception than by objective truth, where opinions are formed before verified information can be fully assessed. The delicate equation between sense and sensationalism, news and noise, civility and chaos, and balance and extremism can also become increasingly distorted.

The Ulu Tiram and GISBH case have all driven the media into a seemingly frenzied state of reporting, as these cases are regarded as matters of public interest. From the broader scope of the case right up to the minute detail of the case, nothing has been spared but reported to the public. Comments from the public reflects feelings of anger, resentment, frustration and disappointment either towards the accused or state institutions. Even the names of the witnesses can be anticipated which has the ability to jeopardize the confidentiality of the case. The lackadaisical attitude in responding to public interest cases can ultimately result in witnesses turning hostile or partial.

The current situation demonstrates how “trial by media” has the propensity to create its own narrative, potentially impacting fair judicial proceedings and the reputations of those involved. It also has the potential of contaminating and influencing the witnesses memories, stance and views. Even if an accused is acquitted, the public may still perceive them as ‘guilty,’ with reputations often remaining tarnished despite a verdict of innocence.

While the creation of social media has given us the extensive space to express our opinions, the lack of policing and regulations have allowed the widespread of rumours and prophecies in court cases. The news disseminated through mainstream media and social media can also create multiple ideas and shroud the story line to the extent that an accused is presumed guilty or innocent before going to trial. This by all means points to the very exact definition of “trial by media.”

The principle of sub judice (under judicial consideration), though relevant, appears to be overlooked in the public discourse surrounding the ongoing trials. The rule on sub judice seeks to safeguard the sanctity of court proceedings and ensure a fair trial to an accused in a criminal trial. Therefore, it would be apt for lawyers, prosecutors and the judiciary to take cognisance of the current situation and devise certain measures to ensure the impartiality of witnesses and to avoid any spillage or contamination of evidence. 

Expert witnesses if appointed under section 45 (1) of the Evidence Act should not only be someone who is qualified in “science or art” but have a track record of being impartial and have not or will not mislead the court. Impartiality in this sense would refer to individuals who abide by the law and do not have a track record of promoting repealed laws or over-ruled cases. Although the court has a discretion to decide whether the expert evidence is admissible, it is imperative for experts to be scrutinised by the courts before accepting their views and opinions. In any event, it is trite law that expert opinion is not binding upon the court.

Despite the media shaping public debate and focusing on public interest cases, the unparalleled capacity of social media also provides an opportunity for lawyers to volunteer and represent offenders who are in dire need of representation. Forget about the legal fees for what it’s worth, it’s about striving and upholding justice. Some cases are meant to be pro bono.

With the proliferation of information through mainstream media and social media platforms, lawyers and prosecutors should seize the opportunity and scour important details through these channels. 

But sadly, very few lawyers have taken the bold step to assist those who are in desperate need of legal representation.

With YBGK being unable to represent SOSMA detainees during trial and its potential dissolution, what would become of the poor and marginalised groups who need legal representation? Where are the pro bono lawyers who are expected to ensure justice and the right to a fair trial as enshrined in the Federal Constitution? Here, it would be useful for legal advocates to be reminded of the quote which says “injustice anywhere is a threat to justice everywhere” by Martin Luther King Jr.

While no one can deny the media’s sterling role as both the keeper of conscience and the unraveller of wrongdoing, it is equally undeniable that the media has been able to entice vast reporting and responses from the public. Hence, it is essential to establish clear rules and regulations to safeguard individuals’ right to a fair trial, as stipulated in the Federal Constitution. After all, what we seek is justice for all.

The author is a Criminologist and the Deputy Dean (Higher Degree) of Faculty of Law, Universiti Malaya, and may be reached at haezreena@um.edu.my