Prejudicial publicity

Something amiss is going on in the Subic rape trial. It is generating excessive and needless publicity that may ultimately cast serious doubts on whether both parties have been afforded due process of law-on whether the opposing sides have been given a fair and impartial trial. There is a looming possibility that the losing party may cry injustice because of prejudicial publicity.

Of course widespread publicity is unavoidable in such a high profile case where a Filipino woman’s honor is at stake and where the exercise of a country’s sovereignty is put to a severe test. The problem however is that media coverage is more extensive on the drama and developments occurring outside the court room than on the actual day to day trial of the case inside.

Immediately noticeable because of its impropriety and possible effect on the trial judge are the post-hearing media interviews of lawyers representing both sides. Usually, reporters asked them to evaluate or assess the testimonies or other evidence given during the hearings. Naturally the opinions or assessments of the interviewees depend on which side presented the evidence. The prosecution invariably claims that the evidence it has presented, testimonial or otherwise, are solid and strong enough to convict, in much the same way that the defense readily denounces them as weak and incredible. Similarly, just as the defense vehemently insists that its evidence is damning to the prosecution’s cause and strong enough to get the accused off the hook, the prosecution casually belittles and discredits them. With such kind of publicity, the purely judicial function of weighing the evidence and determining their probative value exclusively pertaining to the man sitting on the bench of justice has been placed under scrutiny before the bar of public opinion. This kind of trial inevitably happens in high profile cases as best exemplified in this rape case and the equally sensational plunder case of an ex-president.

More detrimental to a fair and impartial trial is the publicity given to the victim and the accused, their life story, their family background and their thoughts and feelings on the events that transpired and led to the case now on trial. These narrations are aired before the press without the force and effect of an oath. But unavoidably, they have subliminal influence on the public including the trial judge.

Much more harmful are the news reports on victim’s reaction to the testimony of the accused and vice versa all made outside the courtroom without the benefit of an oath and untested by a grueling cross examination. When in a press interview "Nicole" brands Smith’s testimony as "all lies" while Smith also publicly wonders in another press briefing why "Nicole" falsely claims that she was forced into doing it when she willingly consented, each of them has caused people to form their own belief on the truth about the case so that any decision by the court which is guided only by the evidence on record, contrary to either of this belief, will be denounced as unfair and unjust.

Lately, more dramatic developments happening outside the courtroom that depicts a prosecution in disarray, has been hugging the headlines. The image or the impression created does not bode well for an outcome that will be generally accepted as fair and just. When the victim or private complainant and his family bitterly and fiercely criticize how the public prosecutor handles their case, people right away perceive that they are panicking because of an impending defeat. It is apparent that they are already laying the groundwork to blame the public prosecutor for the setback; to tell the nation that they got a raw deal because of a whitewash and not because their case is weak. The biggest loser here is the judiciary that will be pilloried for simply doing its job and rendering a decision based on the officially recorded evidence rather than on evidence aired before the press.

Media should therefore be cautioned to report mainly the happenings inside the court room. Existing jurisprudence allows audio-visual recording of the trial for documentary purposes in lieu of live radio-TV coverage (Estrada Plunder case (365 SCRA 62). They can base their reports on these recordings than on interviews and developments outside the court room.

Indeed in view of the present unreliable media coverage of the Subic rape case, a live Radio-TV coverage looks more desirable to serve the ends of justice. Admittedly there are dangers of live electronic media coverage. Before the klieg lights witnesses are less natural as to affect their demeanor or compromise their testimony which is important to the court. Fear of too much public exposure may also cause reticent witnesses to back out. Even the judge may be affected by the glare of publicity. But these are all surmountable by promulgating rules for live coverage of trials. On the balance cameras in the courtroom properly placed to maintain the dignity of the proceeding can convey "more completely and accurately the substance and subtleties of judicial proceedings to the public" Indeed TV has the "capability to cover a trial in its entirety-every word, every gesture and every sentence". Definitely this is much better than post-hearing interviews and reports on developments outside the courtroom. As aptly stated in a case cited in the "Writings of Justice Reynato Puno", "it is important that society’s criminal process satisfy the appearance of justice… and the appearance of justice can best be provided by allowing people to observe it."

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