Presumption of Innocence Diminished to Rhetoric

NOTE: Minor spoilers for the 2011 TV show “The Killing”.

The first two seasons of the 2011 US TV show named “The Killing” deal with the fictional murder of 15-year-old Rosie Larson and the investigation that follows. “The Killing” is not unique. Filmed in Vancouver but set in Seattle, it is basically a rip-off of the Danish show of the same name – “Forbrydelsen” – which aired four years earlier and is not unlike a myriad other shows that introduce its audience to a cast of characters, including detectives, family members and friends of the deceased, politicians, judges, and a rotating list of suspects.

For all of its unoriginality and dramatizations, however, there is a scary realism to “The Killing” in the way it treats its conclusion and in the way it shows the impact crime, particularly murder, has on those around it. A central theme in the show focuses on the way media plays a role in the investigation, particularly the way irresponsible news coverage may hyper-focus on a suspect and what it may lead to. By the end of the second season, one man is severely beaten, one is paralyzed from the waist down, another awaits trial for one of the assaults, and two more people are dead. None of these five people had any connection to the initial murder. And while these events are overdramatized for effect they reflect an uncomfortable reality: the increasingly erosive impact media has on the presumption of innocence.

Tim Rutten, a veteran journalist who spent forty years on staff at the LA Times, often wrote about the way news coverage interfered with the presumption of innocence. In 2003, when writing about the sexual assault allegations made against basketball player Kobe Bryant, Rutten wrote:

"There was a bromide widely circulated among commentators at the time of O.J. Simpson's trial, that celebrities, particularly star athletes, are really the only people who actually enjoy the presumption of innocence to which all Americans accused of crimes are constitutionally entitled. It was baloney then, and it's baloney now. For most Americans -- and particularly for savvy, world-weary journalists -- the phrase ‘innocent until proven guilty’ is simply rhetorical salve used to grease the rails that line the road to conviction." (1)

While public vengeance as a result of media portrayal rarely takes the extreme violent form it did in “The Killing”, the fact that media portrayal has a significant impact on the presumption of innocence remains. This impact is two-fold: it has the potential to affect outcomes in the legal system but it also has the potential of weakening the public perception of the criminal justice system where the court reaches a verdict with which the public disagrees. Such was the case with the trial of Casey Anthony, for example, where “majority of the public and media forcefully condemned Casey Anthony and were utterly flabbergasted when she was acquitted” (2) promoting the belief that the criminal justice system has failed and is broken.

That is not to say that media has no place in the courtroom. After all, transparency is a cornerstone of the justice system. Helen Machado and Filipe Santos, for example, looked at the 2007 Madeleine McCann case which dealt with the disappearance of a 3-year-old British child reported missing from a resort in Spain. They used the McCann story as a case study of the impact “public dramas” and “trials by media” may have on the justice system and they found that media coverage has the potential for positive impact. The argued that distinction had to be drawn between “quality and popular press” (3) as some of the media coverage had “uncovered the need for reforms and change, particularly concerning Portuguese criminal investigation procedures and media relations” (4). However, Machado and Santos also noted that such non-speculative, “quality” journalism is most often drowned out by “popular journalism” that increasingly assumes “an adversarial posture which defies the boundaries of legality and due process” resulting in a possible subversion of “the democratic principle of trial publicity as it is being shifted towards a media arena where personal rights, rules of evidence or the presumption of innocence are frequently undermined by commercial/ideological interests under the pretence of ‘truth finding’ and ‘public interest’” (5).

Ariana Tanoos also noted that “limited benefits that arise form pretrial media coverage” exist and include the promotion of “public education, deterrence, and freedom of the press” (6). She goes on to say, however, that these benefits must not be allowed to interfere with a fair judicial process. She notes the two main issues with pretrial media coverage as being jury contamination (which directly interferes with the presumption of innocence being the main consideration at trial) and with the reinforcement of the public’s negative attitudes towards the defendant (7). She argues that the defendant’s exposure to the media is a form of punishment that most often results in permanent stigmatization, even in the case of an acquittal (8).

Current methods of curtailing the negative impact media has on the presumption of innocence, such as publication bans or changes of venue, are limited, ineffective, or have the potential to interfere with transparency. Furthermore, these methods do not seek to directly remedy the public erosion we see into the concept of the presumption of innocence but rather limit the effects it has on each individual case. Tanoos proposes and interesting remedy that might tackle the issue at the root. She brings up the French Civil Code, stating that in the aftermath of the French revolution (and for the following two centuries), France saw heavy criticism at the ambivalence that it has shown to the presumption of innocence (9). In the year 2000, France saw a change to its Civil Code and “included in these changes was the creation of the presumption of innocence as a personal right, not only for those charged with a crime, but for anyone under investigation” (10). Of course, implementation of such a change would require a constitutional amendment for Canada, expanding the 11(d) Charter right from one affecting persons charged with an offence to all people as a whole. Such a move, Tanoos argues, would strengthen the presumption of innocence, cementing in the minds of the public the significance of this right and its place in society.

1. Tim Rutten, “Presumption of innocence sidelined”, (23 July 2003), online: www.latimes.com/archives/la-xpm-2003-jul-23-et-rutten23-story.html

2. Nicholas A. Battaglia, “The Casey Anthony Trial and Wrongful Exoneration: How ‘Trial by Media’ Cases Diminish Public Confidence in the Criminal Justice System” (2011/2012) 75:3 Albany L Rev 1579 at 1582.

3. Helena Machado & Filipe Santos, “The disappearance of Madeleine McCann: Public drama and trial by media in the Portuguese press” (2009) 5:2 Crime Media Culture 146 at 162.

4. Helena Machado & Filipe Santos, “The disappearance of Madeleine McCann: Public drama and trial by media in the Portuguese press” (2009) 5:2 Crime Media Culture 146 at 162.

5. Helena Machado & Filipe Santos, “The disappearance of Madeleine McCann: Public drama and trial by media in the Portuguese press” (2009) 5:2 Crime Media Culture 146 at 163.

6. Ariana Tanoos, “Shielding the Presumption of Innocence from Pretrial Media Coverage” (2017) 50 Ind L Rev 997 at 1010-1011.

7. Ariana Tanoos, “Shielding the Presumption of Innocence from Pretrial Media Coverage” (2017) 50 Ind L Rev 997 at 1010-1011.

8. Ariana Tanoos, “Shielding the Presumption of Innocence from Pretrial Media Coverage” (2017) 50 Ind L Rev 997 at 1012.

9. Ariana Tanoos, “Shielding the Presumption of Innocence from Pretrial Media Coverage” (2017) 50 Ind L Rev 997 at 1019.

10. Ariana Tanoos, “Shielding the Presumption of Innocence from Pretrial Media Coverage” (2017) 50 Ind L Rev 997 at 1019.