The Dualistic Role of the Media in Wrongful Convictions - Francis Gordon
As the criminal courts operate as an environment with incredibly high stakes, inducing tantalising dramatics, it is therefore understandable that the media would be so interested in this arena. This coverage is as much impactful as it is complex, with the role the media being seemingly as important to consider as other roles in the criminal justice system. Both the conventional and social media have demonstrated to have a great influence on wrongful convictions from the vantage point of two roles. These dual roles can be defined as first, a potential provocateur of wrongful convictions, and second, as a scrutineer of said injustices. Both of these roles are important areas for research as tahey help garner a better understanding of the implications they may have on the courts themselves, for better or worse.
In examining cases where it has been deemed that a person has been wrongfully convicted, a common factor in the wrongful conviction can be traced to intense public pressures for the case to be solved, and the suspect to be sentenced. The media, that acts as a way for many to stay informed about relevant stories and events can be largely to blame for this. Through their repeated covering of a particular case, or types of offences, the media may be “inadvertently contributing to an atmosphere of fear” (1). The impact of this fear generation, and the subsequent public pressure affect a large number of roles in the criminal justice processes, such as those involved with the criminal investigation, trial, or potentially in corrections. By pursuing stories on high profile cases, with the accused being marginalized based on unreliable evidence all can play a factor in a wrongful conviction (2). The media can go beyond simple fear generation by deviantizing certain groups of people, or as defined by Cohen, creating “Folk-devils”, through simplifying/stereotyping traits, or by gross distortions (3).
This issue can go beyond the courts as well, as it has been seen notably in the investigation of what was commonly referred to as the “Beltway sniper attacks”. The criminal profilers used in this case had initially misidentified the potential suspects, believing they were Caucasian males and driving a white van, in reality they were two African-American males in a blue sedan (4). The former description was perpetuated in the media this incorrect profile as correct, leading witnesses to recall seeing a white van at nearly every incident (5). This was done even when it was clear that the police were not certain in their profile, with a police psychologist stating that there was not adequate evidence to make a definitive profile, but instead provided their best estimate (6). Not only was the media somewhat responsible for altering the investigative strategy, pointing them further to the wrong direction, the information that they were communicating were being reacted to by the snipers. When it was communicated that they were not targeting children or on weekends, they reacted by doing both (7).
If we consider the broader definition of miscarriages of justice, the media can play a significant role by the way of sentencing through policy makers. The media tends to disproportionately report on more serious crimes and sentences that are not representative of the crimes committed and sentences given (8). This distorted view presented by the media would impact the public’s perception of the issue, and if asked a simplistic question about crime and sentencing they would want to increase the severity of sanctions (9). Those polling the general public for policy making decisions would then be required to consider the public's opinion, leading to more harsh sanctions for those who may not deserve it.
Although the media can negatively impact wrongful convictions, and the more general miscarriages of justice, the reporting of cases of this nature can have positive implications. Through publicizing these somewhat rare cases in the media, it creates awareness of the deleterious impact of prisons, especially on those wrongly convicted, and thus insights political leaders to intervene in specific cases of misjustice, or the system as a whole (10).
One notable example of this occurred during the wrongful conviction of David Milgaard, where a campaign was mounted in order to get public and political attention. While incarcerated and with little audience for his pleas, a deliberate media campaign was launched so that both he and his mother could get the necessary exposure, with the ultimate goal of influencing a key minister in the s. 690 proceeding (11). This of course proved to be fruitful as the wrongful conviction was later overturned for David.
A more contemporary example can be seen in the Italian criminal trials of Amanda Knox and Raffaele Sollecito. The campaigns had occurred during the age of the internet, possibly providing insight into how future campaigns may occur. The then named group named Injustice in Perugia argued innocence citing an unfair trial as the primary culprit of the initial miscarriage of justice, this in addition to their steadfast belief of their innocence (12). Demonstrating the potential influence of this group can be found when one member cited a potential error in DNA forensics that was later used by the defence to help exonerate Knox (13). It is important to note that this campaign was not without contention as British tabloids called Knox guilty and questioning her character early on, as well as counter groups like the Perugia Murder File held the belief that both Knox and Sollecito were “guilty as charged” (14).
Subsequently, whether the role of the media is aiding or seeking to prevent wrongful convictions, it is always important to be cognisant of the functional role of the media as it impacts criminal proceedings. Whether or not the roles are necessary, they are nonetheless impactful in the case of wrongful convictions. The media must be aware of the role it has and be mindful that it is not blind in reporting of the events it may, as it has been shown to be both dire to, or necessary in helping correct instances of misjustice.
Kathryn Campbell, Miscarriages of Justice in Canada, 2018, University of Toronto Press, print book at 252 [Campbell]
Stanley Cohen, Folk Devils and Moral Panics: The creation of the Mods and Rockers, Routledge classics, 2002, 3rd ed., online: < https://infodocks.files.wordpress.com/2015/01/stanley_cohen_folk_devils_and_moral_panics.pdf.
Suzanne Horsley, The method in their madness: chaos, communication, and the D.C. snipers, 2014, Journal of Communication Management 18:3 295 at 304 [Horsley]
Jennifer Holloway, The perils of profiling for the media: Forensic psychologists speak out on the lessons learned from the Washington-area sniper case, 2003, American Psychological Association 34:1 30 at 30
Horsley, supra note 4 at 296
Julian Roberts & Anthony Doob, News Media Influences on Public Views of Sentencing, 1990, Law and Human Behaviour 14:5 451 at 452
Ibid at 466
Campbell, supra note 1 at 253
Saskatchewan, Edward MacCallum, Report of the Commission of Inquiry into the Wrongful Conviction of David Milgaard, 2008, online: < https://www-deslibris-ca.uwinnipeg.idm.oclc.org/ID/214561.
Lieve Gies, Miscarriages of Justice in the Age of Social Media: the Amanda Knox and Raffaele Sollecito Innocence Campaign, 2017, Brit. J. Criminol. 57 723 at 727
Ibid at 732
Ibid at 725