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NCJ Number: 65288 Find in a Library
Title: LAW OF CONSTRUCTIVE CONTEMPT - A COMPARATIVE PERSPECTIVE
Journal: CRIMINAL LAW JOURNAL  Volume:2  Issue:4  Dated:(AUGUST 1978)  Pages:198-220
Author(s): M LIPPMAN; T WEBER
Date Published: 1978
Page Count: 23
Format: Article
Language: English
Country: Australia
Annotation: AUSTRALIA'S LAW OF CONTEMPT IS DISCUSSED, WITH REMARKS FROM ENGLAND'S PHILLIMORE COMMISSION AND NOTES ON PRESS REGULATION IN THE U.S.
Abstract: IN RECENT YEARS DEBATE HAS OCCURRED WITH THE OBJECTIVE OF ACHIEVING A BALANCE BETWEEN FREE PRESS AND A FAIR TRIAL FOR ALL DEFENDANTS. IN AUSTRALIA THE BASIC MECHANISM FOR CONTROLLING PREJUDICIAL PUBLICITY IS THE LAW OF CONTEMPT. WORDS SPOKEN OR PUBLISHED, OR ACTS COMMITTED OUTSIDE THE COURT WHICH ARE INTENDED OR ARE LIKELY TO INTERFERE WITH OR OBSTRUCT THE FAIR ADMINISTRATION OF JUSTICE ARE CONSTRUED AS CONTEMPT. THE COURTS, IN REALIZING THE IMPORTANCE OF A FREE PRESS, WILL NOT FIND MATERIAL CONTEMPTUOUS WHERE THE RISK OF PREJUDICE IS SLIGHT. THE CONTEMPT LAWS ARE APPLICABLE WHERE PROCEEDINGS ARE 'PENDING,' THAT IS, AFTER ARREST AND CHARGE OF THE ACCUSED. ENGLAND'S PHILLIMORE COMMISSION CONCLUDED THAT THE LAW'S UNCERTAINTIES ARE CAUSED, IN PART, BY AMBIGUITIES WITH THE DEFINITION OF CRIMINAL CONTEMPT. A SECOND POINT OF CONFUSION LIES IN WHEN LAWS ARE APPLICABLE. THE COMMISSION POINTED OUT THAT A STATEMENT MADE PRIOR TO ARREST CAN BE PREJUDICIAL TO THE DEFENDANT. IN ADDITION, NO ADEQUATE DEVICES EXIST WHICH WILL RESTRICT OVER-ZEALOUS INVESTIGATIVE REPORTING. IN THE UNITED STATES THE LAW OF CONTEMPT HAS LARGELY BEEN ABANDONED AS A DEVICE FOR CONTROLLING PREJUDICIAL PRESS PUBLICITY. THE AMERICAN APPROACH FEATURES PROCEDURAL PROTECTIONS FOR DEFENDANTS AT TRIAL, LIMITATIONS ON STATEMENTS MADE BY LAWYERS AND LAW ENFORCEMENT PERSONNEL, AND VOLUNTARY GUIDELINES FOR PRESS COVERAGE OF CRIMINAL ACTIVITY. PROCEDURAL PROTECTIONS INCLUDE VOIR DIRE, SEQUESTRATION, AND WAIVER OF JURY TRIAL. STATEMENT LIMITATIONS APPLY TO LAW ENFORCEMENT OFFICIALS' RELEASE OF A DEFENDANT'S PRIOR CRIMINAL RECORD, THE IDENTITY OF WITNESSES, AND INFORMATION RELATING TO PLEA NEGOTIATIONS. GUIDELINES INCLUDE PROHIBITION ON DISCLOSURE OR PRESS OPINIONS AS TO GUILT OR PUBLICATION OF CONFESSIONS. CHANGES IN APPLICABLE AUSTRALIAN LAW MUST ALLOW BROADEST POSSIBLE FREEDOM OF THE PRESS CONSISTENT WITH THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND MUST BE BASED ON EXHAUSTIVE EMPIRICAL STUDIES. FOOTNOTES ARE INCLUDED. (LWM)
Index Term(s): Australia; Canada; Contempt of court; England; Fair trial-free press; Freedom of the press; Pretrial publicity; Right to fair trial
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=65288

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