The media coverage of court proceedings in Europe: Striking a balance between freedom of expression and fair process

Press curiosity to report on legal proceedings has been a salacious feature in history of mass media. Pre-trial comment, media coverage of press proceedings and the protection of privacy of the defendant are some of the main legal issues which are raised by the ambiguous relation of media to court proceedings. The Internet revolution and the emergence of the blogosphere have added a new dimension to the analysis of these legal issues. A balance between freedom of expression and the guarantee of a fair unprejudiced process has to be achieved in the context of application of legal mechanisms of protection of the justice’s authority, such as contempt of court. As regards the question of media coverage of the court proceedings, the decision of the UK Supreme Court on May 2011 to permit television coverage of its hearings demonstrates an important shift as regards how publicity is perceived by the administration of justice in the UK, while there is a certain disparity between national legislators in the way they deal with this issue at a European level. The legal question of the protection of the defendant through the effective guarantee of the presumption of innocence and, consequently, that of a fair trial is often combined with the debate about the right of the defendant’s privacy not only when there is a pressing social need for information to the public before or during the court trial but also many years after the end of the legal proceedings.     

Gag orders: Shields or swords in the constitutional conflict between fair trial and free press?

In 1976, in Nebraska Press Association v. Stuart, the Supreme Court characterized gag orders as the “most serious and least tolerable infringement on First Amendment rights.”; Yet courts impose gag orders that restrict media coverage of courts and trial participants. Many groups believe the use of gag orders is increasing. However, no previous study has attempted to quantify the frequency of gag orders or to explore judicial attitudes about the issuance of such orders. This analysis of the case law and exploratory survey of judges in Florida suggests that courts issue gag orders to protect fair trials, participant safety and privacy, and the sanctity of the courtroom.

This article also suggests that conflict over gag orders arises because judges disagree about the core meanings of the First and Sixth Amendments. This research indicates that judges' individual interpretations of the Constitution color their determinations of whether indirect gags on trial participants, rather than on the media, are impermissible assaults on the First Amendment or are permissible shields of fair trials. Judges tend to be either First Amendment apostles or Sixth Amendment followers, and Sixth Amendment judges are more likely to impose and uphold gag orders. The authors suggest that this schism is unlikely to be resolved without guidance from the Supreme Court.     

Lowering the Bar: Privileged Court Filings as Substitutes for Press Releases in the Court of Public Opinion

In the civil lawsuit against Kobe Bryant for sexual assault, the judge admonished lawyers for engaging in “public relations litigation”—the use of pleadings to attract media attention and try cases in the court of public opinion. This article examines the legal ramifications of such practices and the doctrines of law that encourage some lawyers and litigants to use pleadings as a form of press release. These include the law of republication and the fair report and judicial privileges as well as the power of judges to gag trial participants. The article concludes that courts have adequate tools to control such practices, and lawyers and public relations professionals can responsibly use court documents to communicate with the public, so long as they do not abuse the judicial process.     

Legal remedies for spousal abuse: Victim characteristics,expectations, and satisfaction

Since 1980 legal remedies for spouse abuse have been established in various forms in every state. Social service agencies and shelters currently encourage victims to utilize restraining orders which now carry criminal consequences for the batterer, yet little empirical data have been reported concerning their use. The present paper describes two research studies-one conducted in Dane County (Madison area), Wisconsin, the other in Sacramento County, California-that provide new helpful information for these referring agencies and offer findings which reflect which victims use these legal remedies, what their expectations are, and how satisfied the victims were with the results. A final section discusses implications for change or clarification in policy, process, and education on the use of these legal remedies.     

Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation

A substantial body of sociolegal scholarship suggests that the legitimacy of the law crucially depends on the public's perception that legal processes are fair. The bulk of this research relies on an underdeveloped account of the material and institutional contexts of litigants' perceptions of fairness. We introduce an analysis of situated justice to capture a contextualized conception of how litigants narrate fairness in their actual legal encounters. Our analysis draws on 100 in‐depth interviews with defendant's representatives, plaintiffs, and lawyers involved in employment discrimination lawsuits, selected as part of a multimethod study of 1,788 discrimination cases filed in U.S. district courts between 1988 and 2003. This article offers two key empirical findings, the first at the level of individual perceptions and the second at the level of legal institutions. First, we find that neither defendants' representatives nor plaintiffs believe discrimination law is fair. Rather than sharing a complaint, however, each side sees unfairness only in those aspects of the process that work to their disadvantage. Second, we demonstrate that the very notion of fairness can belie structural asymmetries that, overall, profoundly benefit employers in employment discrimination lawsuits. We conclude by discussing how a situated justice analysis calls for a rethinking of empirical research on fairness. Audio recordings of respondents quoted in this article are available online. ¹      

Litigant Status and Trial Court Appeal Mobilization

The advantages held by haves over have nots in litigation have long fascinated scholars, with a long line of research revealing that litigant status often affects litigant resources, experience, and chances of overall success from trial courts to appellate courts. What has received considerably less attention, however, is how this status affects the decision to appeal. Bringing a new perspective to this important area holding implications for the shape and content of the judicial hierarchy, this study analyzes the decision of the losing federal district court litigant to appeal to the US courts of appeals. Utilizing an original database containing a sample of federal district court civil cases decided between 2000 and 2004, the results indicate, as predicted, that litigant status differentials affect whether there will be an appeal. This influence is further magnified when conditioned upon the relative costs of the appeal. These findings provide one of the first detailed examinations of litigant status and appeals coming from US trial courts and, simultaneously, offer the first empirical evidence to date that business litigants, like previously known government parties, are advantaged over individuals when deciding whether to appeal.     

Judicial use of social science research

American courts use social science research in three distinct ways: to make law, to determine facts, and to provide context. In this article, we review and critique the approaches that courts have traditionally taken to dealing with each form of social research. We also summarize and integrate a body of work offering a different perspective that treats law-making research associal authority, fact-finding research associal fact, and context-providing research associal framework. We end by proposing a coherent sequence of steps that courts should take when confronted with an empirical question about human behavior.This article was prepared under the auspices of the Task Force on Judicial and Regulatory Decisionmaking of the Carnegie Commission on Science, Technology, and Government. The views expressed are those of the authors rather than of the Task Force or the Commission. We are grateful to David Z. Beckler, Associate Director, for his comments. Requests for reprints should be sent to either author at the School of Law, University of Virginia, Charlottesville, VA 22901.     

“两个证据规定”实施情况调研报告——侧重于三项规定的研究

"两个证据规定"承载着社会各界对完善刑事证据制度、推进公正审判的热切期望,自2010年7月1日实施以来,其实施状况颇为引人关注。本文以四个中级人民法院为研究对象,对中院适用"两个证据规定"的情况进行了调研,通过运用访谈、阅卷等实证研究方法开展研究。就研究主题而言,选取了"两个证据规定"中的三项规定进行重点研究,其分别是非法证据排除规定、隐蔽性证据的使用问题以及特殊侦查措施取得的证据的使用问题。     

Ambivalent Legal Mobilization: Perceptions of Justice and the Use of the Tutela in Colombia

This article explores the relationship between legal consciousness and legal mobilization in the context of constitutional rights in Colombia. Citizens report extremely low confidence in the state and the judiciary, yet hundreds of thousands of Colombians make constitutional rights claims through the acción de tutela procedure each year. Why does profound skepticism of the ability of the judiciary to provide justice and fair treatment seem to coexist with high levels of use of the legal system? How do perspectives on rights and the legal system relate to observed mobilization of the law? Drawing on 74 interviews and an original 310‐person survey, this article develops legal consciousness theory, identifying the specific beliefs that encourage or discourage individuals to turn to the courts to make claims to their rights. In the Colombian case, understandings of law and the state encourage the use of the tutela procedure, not due to the realizable promise of the state to protect rights or the majestic power of the law, but because the tutela is understood to be the only mechanism through which citizens can access their rights. In other words, citizens turn to the courts because there is no other alternative.     

The Right to an Impartial Hearing Trumps the Social Imperative of Bringing Accused to Trial Even ‘Down Under’

Accused persons who are subjected to a saturation level of negative media coverage may be denied an impartial hearing, which is perhaps the most important aspect of the right to a fair hearing. Despite this, the courts have generally held that the social imperative of prosecuting accused trumps the interests of the accused. The justification for an impartial hearing stems from the repugnance of convicting the innocent. Viewed dispassionately, this imperative is not absolute, given that every legal system condones procedures which result in the conviction of some innocent people. While the importance of guarding against wrongful convictions has been overstated, the imperative to bring to trial all accused has been even more exaggerated. The legal system has displayed a capacity to deal with cases where the guilty walk free. The institutional integrity of the criminal justice system would be significantly compromised by convictions that are tarnished by pre-judgment. Confidence in the criminal justice system is more important than individual criminal accountability. The inability to receive an impartial hearing should result in a permanent stay. The only exception is where the alleged crime has the capacity to cause widespread fear or social unrest. This only applies in relation to serious acts of terrorism. This article focuses on recent legal fair trial developments in Australia, however, the analysis, reasoning and conclusion applies in relation to all jurisdictions where juries determine guilt and innocence.     

Courts and sentencing research on contemporary China

As a leading player in the international community and the projected economic powerhouse in the twenty-first century, China's significance in the international community has been recognized around the world. The construction of its legal system, particularly the criminal justice system, has also received increasing global attention. As the cornerstone of the criminal justice system, the courts and sentencing laws and practices underlie many of the fundamental ideas of a fair and just legal system. This article reviews research on courts and sentencing in contemporary China published after 1990, focusing on the following three areas: (1) research on law and legal reforms with regard to courts and sentencing; (2) research on the determinants of criminal sentencing; and (3) research on capital punishment.     

The Journalist's Privilege for Nonconfidential Information in States Without Shield Laws

Figures compiled by the Reporters Committee for Freedom of the Press show that most subpoenas to the news media seek nonconfidential information, opening the door for subpoenas and other legal actions that could seriously infringe First Amendment rights to a free flow of information and an independent press. While courts in most of the nineteen states without shield laws protect confidential sources, however, courts in only two states extend the privilege to nonconfidential information in both civil and criminal proceedings. Protection for nonconfidential information may require the passage of a shield law in Texas, where the courts are especially hostile to privileges for reporters. However, in other states a strong argument based on protecting press autonomy may help the press prevail.     

Who Wants Informal Courts? Paradoxical Evidence from a Yugoslav Attempt to Create Workers' Courts for Labor Cases

The comrades' courts of the East European socialist countries are considered by those who favor alternative means of dispute resolution to be admirable examples of informal courts in modern industrial societies. However, these courts have not been extensively investigated. This article presents the results of an intensive observational study of one kind of socialist alternative court, the Yugoslav Courts of Associated Labor, comparing them with an ideal model of informal courts and with the available data on comrades' courts in other East European socialist countries. We find that, in contrast with the latter, the Yugoslav courts are indeed workers' courts, in the sense that they are used by workers—over 90% of their cases are brought by individual workers. On the other hand, they are not workers' courts in the sense of being controlled by workers—they are instead dominated by legal professionals. We conclude that these Yugoslav courts are attractive to individual workers precisely because they are not informal, social courts, but rather are independent legal agencies from which workers may receive unprejudiced decisions and substantial remedies.     

Why Should Justice Be Seen to Be Done?

A well-known maxim instructs that justice should be seen to be done. When “seen” is understood in the sense of “observed”, the maxim is easily defended: open court proceedings protect against arbitrary and partial decisions. However, when “seen” is understood in the sense of “seem,” the maxim is more puzzling, since it is not obvious why courts should concern themselves with people's perceptions that justice has been done. This article addresses this issue, with a particular focus on the social and other benefits that result when judges observe procedures that are widely regarded as fair, especially in criminal trials. The article draws on empirical studies in social psychology that show that when legal authorities treat people in ways that accord with “lay” procedural expectations, they are more likely to view the authorities as legitimate, to cooperate with them, and to obey the law out of an internalized sense of obligation. The article explores the moral significance of these empirical findings, arguing that it would be superficial to see them as a recipe for social stability. The deeper truth conveyed by the empirical research is that relating to people in ways that are widely perceived to be fair is a way for authorities to engage people's moral sentiments and to enliven their virtuous capacity to put aside considerations of self-interest so as to do what is right. This dynamic provides a sound moral foundation for courts to concern themselves with perceptions of justice.     

“When They Come for You”: Legal Mobilization in New Authoritarian Russia

As of 2012, the Russian State Duma passed a string of repressive laws on nongovernmental organizations (NGOs), surveillance, and high treason. Under this “new authoritarian” regime, a growing number of Russians are investigated by the security services or put on trial for high treason. NGOs face selective prosecution and surprise inspections. While we know how lawyers use legal mobilization in democratic regimes where they can expect courts to be fair, legal mobilization remains understudied in regimes moving toward authoritarianism, where authorities pass repressive laws but enforce them erratically. Drawing on interviews with Russian lawyers, this article examines how lawyers represent two victim groups of state coercion: Russians under investigation for treason and prosecuted human rights NGOs. By examining how lawyers make strategic choices while coping with unfair courts, the random enforcement of laws, and shrinking resources, this article argues that state coercion does not deter lawyers from legal mobilization at domestic courts and the European Court of Human Rights. Instead, repressive laws push lawyers to reinvent their everyday practices to counter repressive legislation and conviction bias in the criminal justice system.     

Equity in Toxic Tort Litigation: Unjust Enrichment and the Poor*

This paper proposes to explore the current and prospective role of equitable theories and remedies in toxic tort litigation. The argument is for an unjust enrichment remedy in certain property pollution cases. The idea is to remove the monetary incentive for polluting economically depressed areas. Two specific areas of investigation come immediately to mind. First, courts have already embraced equitable remedies to address pollution damages. Under Ayers and its progeny, many states have allowed the equitable remedy medical monitoring. What is important to understand is how legal relief for increased risk claims would have been inadequate and also the propriety of finding an equitable approach. Second, moving from personal injury to real property damage claims, we see a similar opportunity for use of equitable relief under an unjust enrichment theory. Currently, there is much debate about the propriety of restoration damages as opposed to fair market value (FMV) damages for the landowners whose property is damaged by the pollution of another. Each approach has various strengths and weaknesses. A better approach might be to use unjust enrichment on a law and economics basis as a remedy to force polluters to internalize the cost of pollution. For instance, take a polluter who pollutes the neighboring environs in lieu of paying one million dollars in disposal and storage costs. Assume the neighboring properties are only worth three hundred thousand dollars on a FMV approach. Assume further that restoration costs are ten million dollars, but that the relevant government agency would accept a natural attenuation clean‐up approach. How should the remedy be set, and should one consider allowing a de facto pollution easement?     

Split sentencing in georgia: A test of two empirical assumptions

Recent research on felony sentencing in the nation's trial courts has highlighted a type of sentence in which a prison term is coupled with a probation period. Under these so-called “split sentences,” convicted felons serve a term of incarceration, are released (possibly) on parole, and eventually come under the concurrent jurisdiction of both parole and probation authorities. Although such a sentence may serve a variety of purposes, it is at least conceivable that judges use the prison/probation combination as a way to respond to prison overcrowding and public pressure for punitiveness.

This article reports a study of split sentencing in Georgia from 1976 to May 1985. Drawing on more general research on felony sentencing in the state's Superior Courts, the authors test two empirical assumptions about split sentencing: (1) the perception that split sentencing has increased over time and (2) the importance of the total term (i.e., the prison/probation combination) over the actual severity (i.e., the time specified for incarceration). These assumptions surfaced in extended interviews with court and community authorities in selected judicial circuits across the state.

The empirical tests of these two assumptions consist of an examination of aggregate sentencing patterns and multivariate analyses of two conceptions of the split sentence. The data provide limited support for the two empirical assumptions. There was no evidence that felony courts in Georgia had increased their reliance on split-sentence terms. Aggregate evidence, however, suggested that judges might use split sentencing as a way to balance the competing pressures of prison overcrowding and the demand for punitiveness. Multivariate analyses offer mixed support for propositions on the importance of the total term. The study concludes with a consideration of the implications for public policy and for research on racial discrimination, sentencing, and trial court processes in general.     

信用证欺诈法律救济的理论发展过程及其评述

信用证欺诈的频频发生,引起了人们关于对信用证欺诈的法律救济措施和法律救济理论的关注。本文重点论述了信用证欺诈法律救济理论及其发展的三个阶段,即:“禁止法院干预学说”阶段、“限制法院干预说”阶段和“法院依法救济说”阶段。本文还结合具体的案例对三个阶段的理论进行了具体和深入的分析。     

Fair and impartial railroad: The jury,the media,and political trials

The clash between social movements and political authority is often played out in the court rooms in criminal cases which are loosely described as “political trials.” While prosecutors, judges, and defendants rarely agree as to the “political” nature of a particular case, all parties usually regard the jury as the pivotal factor. The jury, of course, is enshrined in Anglo-American legal theory as the final check against suppression of liberty by the state. Plea bargaining is out of the question when the very legitimacy of the state is challenged and when dissident defendants are determined to use the trial process as a means of political expression. The crucial question is whether the jury has in fact lived up to its Constitutional role.The article attempts to answer this question at two levels. First, the history of political trials in the United States is reviewed with the general finding that radicals have faced juries which were both grossly unrepresentative of the general population and typically hostile to the ideas, life styles, and social origins of the defendants. Second, the article considers in some detail the impact of media coverage on potential jurors on one particular recent political case, the 1977–1978 trial of accused “guerrilla-bombers” Richard Picariello and Eduard Guilion in the Federal District Court of Southern Maine. The survey opinion data presented for this case strongly indicate that any chance of a fair trial for the defendants was compromised by effects of sustained hostile media coverage before the onset of the trial. Finally, the article considers available remedies in the form of either legislative reforms designed to ensure representative juries, or voir dire procedures aimed at eliminating biased jurors. A review of these remedies offers little hope that future political trials will be substantially fairer than in the past. Moreover, the direction of current criminal justice reforms, as in the proposed S-1722 Federal Criminal Code, promise to criminalize further important forms of political expression.The conclusion is not that jury trials should be avoided or minimized, since judges are apt to be even more predisposed against dissidents. Rather, the point is that the social and ideological biases which intrude especially in political trials are rooted in the political economy of capitalism which underlies the legal system itself. The jury system remains the best available defense against legal repression, but “justice” must ultimately await the outcome of continued social struggle, rather than further refinements of legal process.     

Joinder of criminal offenses: A review of the legal and psychological literature

Criminal courts routinely allow a defendant to be tried for multiple charges in a single trial. The practice is known as joinder of offenses. The issue of joinder of offenses is examined from a legal and psychological perspective. Relevant court decisions and their implications are discussed. In addition, the recent research conducted by social scientists concerning the possible reasons for the prejudicial effects of joinder of offenses is critically reviewed. Suggestions are offered, based upon previous joinder research, for the direction of future research into the loci of the effect and into potential remedies.This paper is an elaboration of one presented at the annual meeting of the Academy of Criminal Justice Sciences, Chicago, March 1984.