Differential or Deferential to Media? The Effect of Prejudicial Publicity on Judge or Jury

The International Journal of Evidence & Proof 2018, Vol. 22(2) 124–143

U. of Adelaide Law Research Paper No. 2019-11

Posted: 24 Jan 2019

See all articles by Rebecca McEwen

Rebecca McEwen

University of New South Wales (UNSW) - UNSW Law & Justice; The University of Sydney - Faculty of Law

John Eldridge

The University of Sydney - Faculty of Law

David Caruso

University of Adelaide - Law School

Multiple version iconThere are 2 versions of this paper

Date Written: January 21, 2019

Abstract

Australian jurisdictions have increasingly moved to facilitate trial by judge alone in cases which are the subject of significant prejudicial publicity. These moves have been predicated upon the assumption that the ordering of a trial by judge alone is an effective means of reducing the risk of prejudice in cases of this kind. This article has two objects. First, it investigates the principles underpinning the availability of trial by judge alone in cases of serious prejudicial publicity, and the different legislative frameworks that have evolved in different Australian jurisdictions. Second, it critiques these principles by analysis of a line of psycho-legal research which examines the comparative abilities of judges and jurors to disregard prejudicial publicity. The article interrogates the reformist assumption that a trial by judge alone will be fairer to an accused who is the subject of significant prejudicial publicity.

Keywords: judge alone, jury, media, prejudice, trial

JEL Classification: K10

Suggested Citation

McEwen, Rebecca and Eldridge, John and Caruso, David, Differential or Deferential to Media? The Effect of Prejudicial Publicity on Judge or Jury (January 21, 2019). The International Journal of Evidence & Proof 2018, Vol. 22(2) 124–143, U. of Adelaide Law Research Paper No. 2019-11, Available at SSRN: https://ssrn.com/abstract=3319586

Rebecca McEwen

University of New South Wales (UNSW) - UNSW Law & Justice ( email )

Kensington, New South Wales 2052
Australia

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

John Eldridge

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

David Caruso (Contact Author)

University of Adelaide - Law School ( email )

Ligertwood, floor 5, Room 519, the University of A
Adelaide, SA 5005
Australia

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