Many people have expressed concern that Oscar Pistorius, charged with murder, is being tried by media.
After all since the shooting of girlfriend Reeva Steenkamp, the papers have been full of discussion and debate about what might have happened that night.
In the UK, once criminal proceedings have started, this sort of speculation would simply not happen. The main reason is that such speculation could prejudice a trial – notably a jury, who might be swayed by reports they are reading in newspapers.
But it’s worth remembering that in South Africa there are no juries. The jury system was abolished in 1969. So there are no ordinary jury members to prejudice – because cases are tried by a judge (or a judge with the help of two advisors who might look at technical aspects of the evidence.)
Of course anyone is open to being swayed by what they read in the press. But you could argue a Judge is much less swayed and in fact is unlikely to look at a case on anything except hard evidence.
A Judge, being a lawyer himself or herself, is also not so likely to be influenced by a good lawyer. Put simply, they know all the tricks of the profession.
Years ago I was a full-time criminal court reporter and to my mind just having a Judge preside over a case has benefits. As it is their daily job, they will be far more likely than any jury to be able to separate fact from emotion. A Judge is less likely to be impressed by what someone does, let alone what a press report says, because they are trained to look at cold facts only.
Often as well a jury has no idea how the legal system works and they will bring deep-seated prejudices and opinions into trials. Defence barristers try to get over this – they are allowed to object to a certain number of jurors. It is often said jokingly that if you are called for jury service, you should turn up in a suit or ridiculous flowery dress if you are a woman, with a copy of a conservative- supporting broadsheet under your arm. The idea behind this is (possibly wrongly!) that a traditional sort of person is more likely to convict someone.
But juries can be won over by a clever barrister – so I saw people who were clearly guilty walk out of court. At the same time I saw some poor defendants, whom I didn’t believe were guilty be found guilty. Sometimes it was because that defendant didn’t come over so well – the jury didn’t like them or their job – or their defence lawyer wasn’t up to the job (juries sometimes seem to choose which ‘side’ they are on by choosing which lawyer’s performance they like best…)
Of course some might disagree – they will still claim that any discussion over what may or may not have happened could be prejudicial to any trial. But despite the intense media speculation over what happened that night, with no jury to influence, it seems unlikely to have much bearing on the trial – whatever happens.