Over the past few months we have seen a dramatic shift in the reporting of high-profile court cases. Television coverage straight from the courtroom, the introduction of online social media commentary and a mix of Disney-like villains in the defendant box, has resulted in some dramatic storytelling. 

The recent David Bain retrial, Clayton Weatherston murder trial and (to a lesser degree) the Taito Phillip Field fraud trial, caught the public’s attention in a manner we have not seen for quite some time. 

Seven years ago I reviewed the David Bain trial as part of my masters thesis into the fair trial, free press debate – that is, looking at the media’s ability to prejudice an accused’s right to a fair trial through pre-trial media coverage. Needless to say, I was most interested in the retrial. 

Listening to Radio New Zealand’s coverage each morning and viewing the news on TV each night, I have to say the retrial appeared to be considerably more compelling – from a listener/viewer’s perspective – than the initial trial. The characterisation developed of Bain’s family and the detectives involved in the case by each lawyer, not to mention their own Boston Legal-like approach at times, made for some exciting media coverage. 

If you’ve ever sat in on a court trial, you’ll be aware of how boring these can be – particularly long-winded trials, like that of the David Bain retrial – as the counsel go through the minutiae of the case using “legalese” decipherable only to those with LLBs or true court-room junkies. 

The poor reporter’s role is to try to a) decode this information and b) distil it into digestible language for the public. In TV’s case, the challenge is to find the ultimate soundbite. The aforementioned court cases provided reporters with some sensational soundbites, giving the public with a taste of the drama – TVNZ even aired the F-word during one report (albeit accidentally). 

As with any story, the best approach is to let the characters speak in their own words. As TVNZ reporter Vicki Wilkinson-Baker summated at the end of the Bain retrial, “It’s much more accurate to have a witness demonstrating how he believes Robin Bain held the rifle; so much better to have an expert point out where blood was found on David Bain’s clothes. What ends up on the evening news or the internet is a small part of the day’s proceedings, but being able to show what happens in court is so much better than trying to explain it” (“Justice through a lens”, TVNZ, 18 May 2009). 

Of course, letting the characters tell their own stories on camera can lead to grandstanding, as we all saw in the Clayton Weatherston trial with the accused courting the cameras throughout his testimony, cementing animosity among the public (as seen in the social media coverage). 

In the Taito Phillip Field case, however, cameras in the courtroom arguably failed to make a difference to the public’s impression of the case – perhaps due to the characters involved (i.e. a politician not academic-turned-murderer) or apathy towards the subject itself (white collar crime is never as sexy as murder). 

What made the Bain and Weatherston court trials most interesting were the adjunct trials underway online. Social media sites such as Facebook, Twitter and the various blogs all carried daily – sometime hourly – subjective coverage of the case. The Solicitor General’s office scrambled to keep track of the coverage and investigate how many sites had breached contempt of court laws. 

Talking to the New Zealand Herald, Wellington-based media lawyer Steven Price said at the time, social media sites had a real risk of prejudicing the fairness of a trial, “especially the case when you’ve got a jury trial. Put yourself in the shoes of the defendant. Would you want to be a defendant who’s facing not just the accusations of the Crown but basically a cheerleader crowd of commentators out there, who have seen maybe just some media reports of the trial, and are basing their comments on that instead of the whole evidence?” (“Trial commentators under scrutiny”, NZ Herald, 12 July 2009). 

I’d go further to add witnesses, jurors and victims to Price’s statement. What are now seeing is prejudicial publicity during a trial by ‘un-vetted’ comment on social media sites – all of which impacts on witnesses and victims, and to a lesser extent jurors (only by sequestering jurors can the law truly avoid infiltration of media reports). 

As I concluded in my thesis, this effect only impacts on a small number of high-profile cases but the fact that the effect occurs at all is of concern. The situation is unlikely to change in the short or medium term – if anything it will get worse. The subsequent impact on our judicial system by this new form of storytelling will, no doubt, be interesting to watch.