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If your next door neighbour was a suspect in a murder case, would you want to be informed? On the flipside, how would you feel if you were revealed to the public as a suspect in a criminal investigation – but were innocent?
Whether suspects in criminal cases should be publicly named is a contentious issue that’s hotly debated – not without reason. There have been several cases where naming suspects has allegedly jeopardised the right of a person to obtain a fair trial or adversely affected the life of the accused.
In Australia, we have the right to the presumption of innocence. But is this really possible once a suspect – whether guilty or innocent – is publicly named?
Dr Marilyn McMahon, Associate Professor (Criminal Law) at Deakin University says there are some misperceptions about the presumption of innocence and many people in the community assume that a person identified by police as a crime suspect is actually guilty of the offence.
‘Our legal system is underpinned by the presumption of “innocent until proven guilty” and this applies to suspects, persons arrested and charged with criminal offences, as well as those who stand trial,’ says Dr McMahon.
‘But the presumption is fragile and many people assume that being charged or prosecuted indicates guilt. Consequently, a key issue is “what is the appropriate point to disclose the identity of a person believed to be involved in a criminal offence?” When the person is suspected by police? Arrested? Charged? Convicted? Traditionally, people were only identified after they had been arrested or charged. The lesser certainty associated with being a suspect – that is persons merely suspected of a crime but not charged or arrested – did not justify disclosure.’
But Dr McMahon explains that since about 2013 there’s been a shift in this approach, with Victoria Police more frequently publicly identifying suspects in criminal investigations.
While there are obvious issues associated with this, police believe that there are certain circumstances in which naming suspects can be advantageous. An example of this is in cold cases (serious unsolved criminal cases), where the police release details in the hope that it triggers public interest and generates new information about the case.
‘The collaboration of the Homicide Squad Cold Case Unit of Victoria Police in the television series Million Dollar Cold Case is a recent example of Victoria Police’s current standpoint on identifying cold case suspects,’ says Dr McMahon.
Police also sometimes disclose the identity of a suspect when dealing with a suspected serial offender, in the hope that other victims will become aware of the police investigation and disclose their victimisation to police.
The ever increasing threat of terrorism is another serious issue that’s seen police name suspects for the sake of community safety. Dr McMahon believes that this is an exception where disclosure may be justified.
‘When a suspect presents a continuing and serious threat – such as a terrorist who has engaged in an act of violence and is still at large – police may disclose his/her identity if they have strong evidence (sufficient to arrest the person) in the hope that the public will assist them in capturing the suspect,’ says Dr McMahon.
'A key issue is “what is the appropriate point to disclose the identity of a person believed to be involved in a criminal offence?” When the person is suspected by police? Arrested? Charged? Convicted?'
Dr Marilyn McMahon,
But what if the suspect named is in fact innocent?
When bombs exploded in a park in Atlanta, Georgia during the 1996 summer Olympics, a man named Richard Jewell was identified by the FBI as a suspected terrorist. Subsequently harassed, reviled and ostracised, he lost his job and withdrew to his mother’s apartment, rarely emerging. After three months, the FBI realised that Jewell was not the offender, in fact, he was a hero who had shepherded people in the park to safety. He was formally exonerated and sent a letter of apology but subsequently said ‘the government’s letter cannot give me back my good name or my reputation … the FBI and the media almost destroyed me and my mother’.
Due to the presumption of innocence, police who name suspects typically claim that they are not suggesting that the named suspect is guilty. ‘But whether those disclaimers have much impact is very dubious,’ says Dr McMahon.
‘Damage to reputation can be significant for people who are incorrectly suspected of having committed a serious crime. People who are named as persons of interest or crime suspects in the media become part of a public record that is searchable and permanent. If they are subsequently excluded from the investigation, their previous identification as a suspect will likely endure in the public sphere.’
This begs the question of whether the potential public safety element outweighs the potential negative impact caused by publicly naming someone if they are actually innocent.
Dr McMahon says that the answer to this question would vary for each particular case, requiring a balancing act to weigh up the competing interests of the suspect and the community.
‘However, as a general rule it would only be in exceptional circumstances, where police have sufficient information to arrest but the suspect is still at large, that community protection would justify naming a suspect,’ she says.
‘For most of the thousands of persons investigated each week by police in Australia there would be little justification in naming them before they were arrested or charged with a criminal offence.’
Dr McMahon believes that when it comes to the issue of naming suspects in criminal cases, what’s lacking are clear guidelines that stipulate if and when it’s appropriate. She says that further discussion is needed to move forward and gain clarity on the issue.
‘Currently there are no general laws or rules concerning the identification of suspects,’ she says.
‘Changes have occurred (for instance, in Victoria) without public discussion, without police clearly identifying what the current policy is and without them providing the rationale for the change.’
‘At the very least, police forces in Australia should clearly state their policies and thereby open up the issue to informed public discussion,’ concludes Dr McMahon.
Interested in pursuing a career in law? Consider studying law at Deakin University.
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