Shnoor and Menashe on Balancing the Right to a Fair Trial Against Freedom of Expression in Israel

Boaz Schnoor, College of Law and Business, Ramat Gan Law School, and Doron Menashe, Sr., University of Haifa Faculty of Law, are publishing Sub Judice and Free Speech: Balancing the Right to a Fair Trial Against Freedom of Expression in Israel in volume 19 of the San Diego International Law Journal (2017). Here is the abstract.

One of the basic principles of criminal law is the right of a defendant to have his guilt determined by those appointed by law, and that the decision will be based only on admissible evidence that will be presented in court. Media publications regarding ongoing criminal proceeding, and reports that do not relate to what is happening within the court may undermine these principles and may tip the scales in the defendant’s verdict. The sub-judice principle prohibits the media from publishing information that may alter the course and results of the trial. Its purpose is to ensure the defendants right not to have an unfair trial, due to a bias opinion of the judge in charge of the case. However, this principle seemingly violates two basic principles, namely the right to freedom of speech and the right for a public trial. The article will review comparative law such as Canada, England, France, Australia and more. In addition, the article will review a number of cases in Israeli case law that have referred to the principle of the sub-judice, and the influence of these publications – or their blatant attempt to influence the results of the trial. Furthermore, the writers will demonstrate two methods of balance between freedom of speech and the right of the accused to due process and presumption of innocence, as done in Britain and America, and show the huge gap between the two countries, so that in America, freedom of speech is protected, also given the risk of influencing jurors, and in Britain these publications are strictly prohibited in order to preserve the presumption of innocence. Nevertheless, the two approaches recognize the influence of the media to ongoing proceedings. The authors display a method according to which, any report regarding an ongoing criminal proceeding should be banned until the end of the trial. If there is a need for publication, the defendant must first be acquitted, and only then can publicity be allowed. But this model poses a problem, due to the risk of acquitting a possibly guilty defendant. However, if we cannot afford to take that risk, in order to protect the freedom of speech, how can we allow the risk of wrongful conviction of an innocent one for the same reason? This article proposes a new model, a revolutionary and restricted model. According to the model, the sub-judice rule will include specific prohibitions regarding evidence related to the offense that have not yet been brought before the court or are inadmissible, as well as the prohibition of publishing interviews with witnesses, litigants and experts who will report of the expected outcome of these testimonies. This new model will prevent a situation in which a trial is carried out by the media, and false convictions are made because of it. The model offers proper balance between the rights, such that also limits the violation of freedom of speech.

Download the article from SSRN at the link.