Differential or deferential to media? The effect of prejudicial publicity on judge or jury

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.