The incidents of criminal trials being conducted out of the eyes of the public or the press seem to be increasing and if the rate publication bans continues justice in this country may become a thing of the past.
Ayn Rand once wrote, “Justice is the recognition of the fact that you cannot fake the character of men as you cannot fake the character of nature, that you must judge all men as conscientiously as you judge inanimate objects, with the same respect for truth, with the same incorruptible vision, be as pure and as rational a process of identification – that every man must be judged for what he is and treated accordingly…”
Now, you might think that I bring up this quote to refer to a juror’s judgment of the accused but I don’t. I bring it up as a reminder that a judge must judge a juror with the same standard that he judges an accused, with respect for the truth and with “incorruptible vision.” A judge must assume that the character of a potential juror is not going to be corrupted by information he may get of a case before it is heard.
If the only pool of people we select for juries is the one populated by people who do not read newspapers or watch the evening news or are up to date on current affairs then the quality of jurors is not going to reflect the general populace. Such an ignorant juror may not be among the peers of the accused and that would be unjust.
It should suffice that a judge ask a potential jurist is he capable of judging a case based solely on the evidence provided at trial and to disregard any hearsay or innuendo gathered outside of the trial. If there is no reason to consider that the jurist lacks integrity then the judge should accept that jurist’s word.
Superior Court Justice Ian Nordheimer said during the trial of Jorrell Simpson-Rowe, the first person to be tried in the death of Jane Creba, that “The fact remains that the public has a right to know. The public has the right to fairly evaluate whether justice has been done in any given case.” I would agree.
Justice Peter Cory wrote in 1989 “The courts must be open to public scrutiny and to public criticism of their operation by the public.” Such criticism is impossible if details of the trial are hidden behind the shroud of a publication ban.
Justice Lyman Duff wrote in 1909, “It is of vast important to the public that the proceedings of courts of justice should be universally known.”
Are there any instances when the details of a trial should be blacked out? Yes, but I suspect that these instances are very rare; possibly in cases where evidence may affect national security, or perhaps when there might be a clear threat to life. Otherwise the openness of the courts is essential to justice being done.