Have you ever worked on a trial, from start to finish? I have. When I did so, I was always amazed about how much information – how much detail
– I would miss by simply stepping out of the courtroom to go to the bathroom.
Have you ever been a court reporter, and tried to cover a trial? I have. I was the courts guy for the Ottawa Citizen, and I was always terrified about how much information – how much evidence – I would miss by simply doing my job, flitting from one courtroom to the next, trying to cobble together a good story without errors.
Thus, the Ghomeshi trial (or the Bosma trial, or any other trial that attracts a lot of media attention): with the exception of a few dozen other people, who are there every day, none of us – none of us – are there to observe the proceedings, to hear and see the evidence.
This is important, because – since these two trials kicked off this week – I have seen too many otherwise-sensible folks lose their minds on social media, and appoint themselves the role of judge, jury and executioner. For reasons I do not fully comprehend, they think they have superior insight into the accused, the witnesses, the evidence and the law – simply by peering periodically at a tiny screen, filled as it is with 140 characters.
They don’t. They can’t. Facebook – and Twitter in particular – facilitate a sort-of mob mentality online, one in which people with no understanding whatsoever of the issues/evidence/law decide whether someone is guilty/culpable or not. It’s like The Ox Bow Incident, except with smartphones (watch that movie – it’s why I went to law school).
Here’s a cautionary report from the U.K.:
The rise of social media has meant that conversations about criminal cases, once had down the pub or over the garden fence, are now instantly published online – and can be shared with thousands, BBC legal correspondent Clive Coleman says.
Instant publication on the internet can go viral at an astonishing rate but so too can the message that the criminal and civil law applies to it as much as to a considered newspaper article. Education on the law of contempt is likely to spread very rapidly online.
But Facebook and Twitter are publications subject to the same laws that in practice used to apply only to the mainstream media. Anyone commenting about a case or defendant in a way that could prejudice a trial could be prosecuted for contempt and imprisoned.
There, the British Attorney General has starting publishing advisories to the general public – advisories that previously only went to accredited media – about how to avoid being jailed for contempt for something someone posted online about a trial.
The same sort of conclusions are being reached in Canada, particularly after the notorious “Killer Colonel” case:
The usually media-shy lawyer [Michael Edelson], whose Ottawa firm has represented many high-profile clients, said he’s gone public with his views because the issue is too important to ignore.
Edelson said he’d like to see a forum where senior journalists, judges and lawyers could get together and “throw around ideas” about whether social media tools should be controlled inside the courtroom.
The context of what’s being heard in court is often lost in Twitter posts, which are limited to 140 characters each, he said.
“The public interest is not served by where they don’t properly understand court proceedings and they don’t understand why a certain verdict or certain sentence emanates from the court, because they haven’t been given enough information to make a decision for themselves,” Edelson said.
“And certainly, getting 140 characters doesn’t assist you in making a decision whether or not the judge got it right or lawyers were making silly submissions or whatever the case may be.”
Which brings us to today, and to the shredding of the first complainant in the Ghomeshi trial. There can be no doubt – as seen here and here and here and here – that she has handed the prosecution a devastating setback, one that clearly creates lots of questions about the alleged offence as it relates to her. She did that – not the defendant’s (very capable) lawyer.
Those of you who are getting upset reading Twitter accounts of the trial of the former CBC luminary – and expressing your feelings online – need to please take a step back, and recall those hoary old concepts you’d like to apply to you, should you ever have the misfortune to get in big trouble – you know, innocent before proven guilty, vigorous defence, guilty beyond a reasonable doubt, etc. (And please don’t lump me in with the misogynistic scum who are delighting in how the Ghomeshi trial has gone so far. Personally, I usually favour regarding sexual assault as a capital offence. I’m not exaggerating, either.)
Months ago, a lawyer who knew more about Jian Ghomeshi’s trial told me he was likely going to walk. “The charges were laid in an environment of total media and social media hysteria,” this lawyer said. “The evidence just isn’t there.”
This week, the evidence certainly didn’t seem to be there in R. v. Ghomeshi.
But then again, I haven’t been in that Toronto courtroom every single day. So I don’t know.