Introduction
In this article I wish to deal with what is loosely called the “court of public opinion”. For convenience in this article, I will remove the quotes. The opinion or perception by this informal constituency can have far reaching implications on the reputation or standing of a part to legal action, especially in a criminal matter where one is the accused person or civil matter where one is sued as the defendant or respondent.
Definition of court of public opinion
My definition is based on several internet sources and also my understanding and experience as a legal practitioner. The court of public opinion is not an actual court of law. It refers to the informal processes or situations where the general public formulates opinions or even come up with informal judgments on ongoing legal matters. This is quite common where for example a matter is reported in the media concerning someone who has been arrested and arraigned before a court of law or when a person or organisation is being sued for debt or other alleged violations such as breach of contract.
In other words, the public “tries” a person based on the little information available in the public domain and then passes judgments on whether the person committed the alleged offence or breach. The opinions usually affect a person’s reputation or standing. If one is accused of committing a criminal offence and is “tried” and “convicted” by this informal court his or her reputation is dented at times significantly or permanently. The person will be stigmatised. He or she has no opportunity to explain his or her side of the story. He or she cannot be heard. The court of law is better in that each party has the opportunity to be heard, to present its side of the story, to adduce evidence to support its case, and to be represented by a legal practitioner.
Important points or characteristics of the court of public opinion
Some of the key or interesting points or characteristics of this informal court are as follows:
- This court, setup or constituency has no official legal authority. It is informal. It is not registered in any way. Its members are usually not defined. Most of the members of this court are lay people. With the aid of social media, the members can be many.
- The public may not be at national level but local level such as your neighbourhood, business or social circles.
- The court can wield significant influence as to create public perceptions or pressures.
- The court formulates opinions or passes judgments against the accused person or the person being sued in civil matters, based on publicly available information which is usually one sided and limited. For example, newspapers may report on the charges against an accused person as per the prosecution or a claim in summons and accompanying documents such as a plaintiff’s declaration. Reports from such primary sources are then amplified or shared through the social media. By that time the accused or sued person may have not said anything or much in his or her defence. What is reported by whichever source may be taken as the gospel truth.
- Through debates or the expression of different opinions the court of public opinion can influence general public opinions or reactions to pending matters. This can put pressure on litigants.
- This informal grouping can also express opinions on the complainant in a criminal matter or the one suing (plaintiff or defendant) in a civil matter.
- The court of public opinion has no formal rules of evidence or procedure. This court does not usually wait to hear the other side or treat a person as innocent unless proven guilty by a court of law. Most people in this informal court do not understand laws of evidence or court processes. They use mainly hearsay evidence to come to a verdict.
- The views or perceptions from this constituency may have a strong and long-lasting bearing on the reputation or standing of the person being tried or sued. I remember growing up that once a person from our neighbourhood was called to the police station, not even arrested, but allowed to go back home after an interview, each time there was an alleged offence such a person was, in our view, always a suspect.
- Even if a court of law subsequently clears the person being accused or sued the court of public opinion does not usually go back to review its opinion. In fact in most cases when someone is cleared such issues are not newsworthy and may not even be reported.
- The court of public opinion has no legal authority to sentence a convicted person but may informally express an opinion on what is considered the right sentence.
- Negative perceptions that may be created by the court of public can be a reason for parties to consider an out of court settlement or arbitration whose proceedings are usually away from the public scrutiny.
Conclusion
The court of public opinion is real in that while it is informal it actually exists and can wield significant influence on how someone is viewed during or after a court case.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), ACCA (Business Valuations) MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his personal capacity. He can be contacted on +263 772 246 900 or ghofisi@hofisilaw.com or gohofisi@gmail.com. Visit www//:hofisilaw.com for more articles.
