Should lawyers at a public trial be allowed to send out microblog messages during the proceedings? The issue recently came up during a gang-related criminal trial in Guiyang, which involved 57 defendants and over 40 attorneys.

During the hearing, several lawyers queried jurisdiction and procedures, causing disruption to the point where the judge in one instance ordered three lawyers from the court.

But more controversially, some lawyers in the court have been broadcasting information about the trial and their opinions of the judge through the Sina Weibo website.

As you might expect, some lawyers say that this is a great idea, that it keeps judges on their toes, promotes transparency, and informs the public. I disagree.

On the one hand, we have the rules. Judges are in charge of their courtrooms, and if they do not give permission for such types of disclosures, lawyers would be smart to take care with this sort of thing. You don’t want to piss off a judge.

Lawyers who tweeted critical remarks during the proceedings in this case were not only in possible violation of court rules, but they were certainly not representing their clients very well in voicing negative comments about the judge and the bench’s rulings. To be blunt, you’ve got to be an idiot to do that during a trial while the judge, to be even more blunt, still has you and your client by the balls.

As to the the big picture, is this a “good” thing? I’m not that keen on televised cases (I take tweeting as functionally equivalent) because of the effect on the performance on judges and lawyers; we lawyers tend to be publicity whores. Hearings that are open to the public and, afterwards, rulings and other documentation that are released seems good enough to me with respect to transparency.

Another issue to keep in mind. In jurisdictions with juries (e.g. Common Law countries), one reason that gag orders are put into place is to stop certain information from being disclosed and then discussed by the media. The worry is that this discussion will somehow make its way to jurors and influence their decision.

This is obviously not the case in China, as cases are all decided by judges. So we don’t need to worry as much here about the effect of this information on the public with respect to the case at hand. That being said, and certainly judging by the discussions I’ve seen online about pending cases, the public’s view of a case can be decidedly skewed by the receipt of partial information, particularly if that is being “spun” by an advocate for one side. Building up a system of rule of law is hard enough without the public being deliberately misled about how the system works. While I see this as a minor problem, it’s certainly an argument that deserves attention.

And finally, this is not really about free speech. We’re not talking about limiting the speech of the public or of journalists, just lawyers who are working on the case. Lawyers in China are officers of the court who are expected to act with the public welfare in mind (a bit different from the “zealous advocate” model in places like the U.S.). I therefore do not see a problem with a limited restriction on their speech during legal proceedings.

Fun topic for a Friday. Enjoy the weekend!

© Stan for China Hearsay, 2012. | Permalink | One comment | Add to del.icio.us
Post tags: gag order, litigation, microblog, social media