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The biggest mystery about the Kahui case…

By Steven | May 25, 2008

… is why so many journalists seem to have no idea of what an acquittal means. 

I’m getting pretty sick of statements like this one, from today’s Herald on Sunday:

…the jury of seven men and five women were unanimous in their view that he was not the killer. 

No, they weren’t (or if they were, their verdict doesn’t tell us so). All they found was that the charge hadn’t been proved against him beyond reasonable doubt. For all we know, every man jack on that jury believed he was guilty – but just couldn’t be sure enough to convict.

Juries don’t find people innocent. Nor do they “clear” people, really. A juror can be 90% convinced of guilt and still vote to acquit. This shouldn’t be difficult for journalists to understand and write about properly.

Topics: Media ethics | 4 Comments »

4 Responses to “The biggest mystery about the Kahui case…”

  1. Anita Says:
    May 25th, 2008 at 6:07 pm

    Out of interest, how can the media talk about Chris Kahui now?

    The Police clearly believe he is guilty and are making that as clear as they seem able, what can the media say? If he had not been tried yet they’d just slap “is alleged to have” in front of every verb, can they still do that?

    How far can they go in constructing a sentence like:

    “The crown clearly believes that Kahui killed his sons although they were not able to find sufficient evidence to convince a jury beyond reasonable doubt.”

    I guess what I’m asking is whether the media can imply a balance of probabilities guilt providing they nod toward the jury finding.

  2. Steven Says:
    May 26th, 2008 at 10:14 am

    Saying “alleged” doesn’t magically change a defamatory statement into a non-defamatory one. You’re still passing on the substance of the sting.

    The media can report, as they have, that the police still think Kahui is guilty. That’s still plainly defamatory. But in defamation you only need to prove what you’re saying on balance of probabilities. You’re not really “implying a balance of probabilities guilt”, you’re implying guilt, but if challenged, you’ll only need to prove it on balance of probabilities. (That doesn’t quite tell the whole story, either, since if you’re making serious allegations the need for convincing evidence roves up a bit so that the standards is something like “on balance of probabilities, but commensurate with the gravity of the allegations.”)

    The media may be figuring that:
    1. They’d be happy proving Kahui’s guilt on balance of probabilities; or
    2. They have made it sufficiently clear in the coverage that this is merely the police’s allegation/suspicion, in which case they probably only have to prove that there are reasonable grounds to suspect Kahui’s guilt; and
    3. They doubt Kahui has the resources or stomach for a defamation fight.

  3. Anita Says:
    May 26th, 2008 at 11:48 am

    If “alleged” doesn’t make something non-defamatory why is it so heavily used?

    If reporting that the Police maintain the belief that Kahui killed his sons is defamatory, where is the line? I mean the Police clearly do believe that, is it defamatory for them to say so, or to imply it? Is it defamatory to report it because it’s passing on a defamatory statement, or because reporting that the Police believe something is to imply that it is true?

    I guess I struggle a little with the idea that reporting someone’s reasonable belief is defamatory when it is put in the context of other beliefs and facts which balance it. That said, some people’s and organisation’s beliefs carry more weight.

  4. Steven Says:
    May 26th, 2008 at 12:12 pm

    Why do people use “alleged”? Because they think it gets them off the hook. They’re wrong. But it may help in some cases.

    Why doesn’t it get them off the hook? Because it’s still publishing the harmful statement. If I said “Anita is alleged to be a child molester” I think you’d still rightly feel defamed. Even if in fact someone had alleged that. Even if that someone was a police officer. So yes, reporting someone’s beliefs like that carries an implication that they are true, or at least that there are reasonable grounds to think so.

    The test the law applies is what ordinary reasonable readers will think when they read the story. Usually, if reporters clearly attribute (and/or throw in an “allegedly”) and don’t adopt the views of the people they’re quoting, their readers won’t think “oh, they’re saying it’s true”. But they will think “well, there must be some substance to that, some good reason for that accusation to be made”. And that’s what the media will have to prove. Not just that the police said it.

    It’s possible to write an article so that it includes the police views, but doesn’t re-publish the defamation, but it’s very hard. If the views are published as a platform to demonstrate that they’re wrong, so that the defamatory sting is demolished by the rest of the article – that won’t be defamatory. That’s called “bane and antidote”.

    It’s also possible that an article can be carefully written to make it clear that the publication doesn’t necessarily agree with the police views, or has no information that they are correct, or is merely suggesting they give rise to the need for an investigation. Again, it all depends on what ordinary reasonable readers (ie the judge’s view of what ordinary and reasonable readers night think).

    In principle, that seems right to me, though it does create some uncertainty.

    The lessons for journalists (though they’re not often followed) are to be clear about what you’re alleging (even when quoting others making allegations) and to be honest with readers about what you know and don’t know.

    Bottom line, though – there are very few cases of people suing papers for repeating the views of police. This situation is much more likely to arise when a paper is repeating the views of a company spokesperson about a sexual harrassment allegation or an organisation is making accusations that an athlete has been taking performance-enhancing drugs, etc.

    There’s a discussion of the nuances of the law, and some suggestions on how to deal with it, in that fine publication, Media Minefield, which you can learn more about by clicking the link on the left.

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