Fair Trial in the Digital Era. English and Italian standpoint

England and Italy have, in principle, the same criminal procedure model, known as the adversarial system. One of its central ideas is that a fair trial requires the complete ‘cognitive virginity’ of the person passing judgment on facts relating to the crime (jurors in England, professional judges in Italy). The evidence is presented to these decision-makers by counsels for the prosecutor and defence, and the verdict must be based solely on the grounds of evidence properly admitted at trial. Other knowledge could jeopardize the impartiality of jurors/judges, thus vitiating the legal process. In the digital era, new media, social networks and extensive external sources of information pose a fundamental threat to this assumption of cognitive virginity, and ‘trial by media’ may impinge on what goes on in court.In the English system, this is a matter of major concern. At the outset of the trial, jurors are warned by the judge that they must not discuss the case with anybody, read newspapers, check issues or points of law on the internet, post on social media, etc. In the Italian system, even though the phenomenon of trial by media is extremely frequent, there are no similar provisions to guarantee impartiality.

This paper compares the two legal systems, and analyses the Criminal Practice Directions (2015) produced by the Royal Courts of Justice. Jurors are told that they must ‘disregard any media reports on the case’, but in an age where most citizens are exposed to diverse forms of multimedia input, this is easier said than done. As for the Italian context, the judicial authorities have yet to take the first step towards finding a solution, i.e., to recognise that new media do indeed constitute a problem.

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