Bar News - November 18, 2015
Opinion: Media and the Law: Different Goals Often Prevent Sound Reporting of Legal Matters
By: Tony Sculimbrene
Complaints about the media abound these days. In politics, McLuhan’s message has finally hit home in a big way – the media is the message, especially in the era of Fox News and CNBC. But unlike the political arena’s criticism of the media, coverage of legal matters presents two serious challenges to reputable journalists.
Whenever a high-profile case is tried, the fault lines between the law and the news are highlighted. These issues came into sharp focus most recently in the coverage of the Tsarnaev trial earlier this year. Like you, I was asked by non-lawyers about the outcome of the trial. It was clear from my perspective that the trial was a slam dunk for the government in the guilt phase, and that the defense was really being held for the penalty phase. But to the uninitiated – non-lawyer and reporter alike – this approach seemed surprising. Many media outlets obsessed over whether Tsarnaev would be found guilty.
The ethics of journalism stress the need to both report all sides of an issue and to give a voice to those who otherwise would not have a voice in society. The compound effect of these two principles of journalistic ethics is a fundamental misreporting of legal news, especially in the coverage of jury trials.
Trials are, by their very nature, two-sided affairs. One story is told by the plaintiff, and one by the defense. Journalists, confronted with these different perspectives and their ethical obligations, often treat both arguments as equally meritorious. The reality is that in many trials, the arguments aren’t equal. Lawyers know the adage about when to pound on the table, but the ethical obligations of a journalist prevent him or her from seeing and reporting this as mere bluster.
Lawyers assess the merits of their cases every day. We know that some cases are better than others. We know where the weak points are and, in private, with clients, we are obligated to advise them of such. In the courtroom, however, we are advocates, and we have an equally powerful ethical obligation to zealously argue for our clients. Those two roles are very rarely presented in the media, and zealous advocacy is almost always mistaken for meritorious claims or, even worse – an endorsement of the position for which the lawyer is arguing.
Good journalism also requires reporters to serve as “a watch dog” of the system. This outside-observer status is an important, if not crucial role for the media. But when it comes to the law, the nuance and necessary secrecy of proceedings turns this “outsider” status from a virtue into a disadvantage and a flaw when it comes to reporting.
For example, think about motions in limine – they are designed to keep inappropriate information away from juries. Journalists often see these as “legal maneuvering” or efforts to hide the truth (which, in some cases, they are), and report on these motions as such, without taking into account the fundamental assumption that guides our legal system – everyone is entitled to a fair trial and some information, even if it is relevant, fundamentally erodes the fairness of that trial.
Journalists are right to be suspicious. After all, it’s their job to uncover hidden information. But the goals and principles of trial are rarely discussed in coverage of legal matters, often making these news stories incomplete.
The law and the media do not often get along. Lawyers quickly respond “no comment” to even the most innocuous inquiries, which does not help journalists to understand the system. But there are some genuine conflicts between how journalists are supposed to function and how the legal system works. Finding ways to resolve, discuss or at least acknowledge these conflicts would be a good thing for journalists, the legal system, and the public.
Tony Sculimbrene is a public defender based in Nashua.