'The prisoners could not have that fair and impartial trial which justice demands': a fair criminal trial in 19th century Australia

The notion of a "fair and impartial trial which justice demands" requires jurors to have regard only to the evidence presented at trial and discount anything they may hear or read outside court. Prejudicial publicity and prejudgement challenging an impartial jury is not a new problem, but have proved problematic since at least the 1800s. This article considers how trial by media was a recurring 19th-century concern in both sensational and routine criminal cases in England and Australia. The authors draw on the extensive press archives of the period and through examples of 19th-century Australian case studies (reinforced by English examples) examine the problem of prejudicial pre-trial publicity and the various 19th-century remedies to address publicity and bias. It is argued that these remedies were of little utility and trust was placed in the ability of 19th-century jurors to heed judicial directions to have regard to only the evidence led at trial. Though this premise was (and remains) questioned, 19th-century juries proved capable of ignoring even the most hostile pre-trial publicity and an impartial jury was not an ignorant jury. It is argued that 19th-century jurors ultimately had to be trusted to follow judicial directions. This premise remains but its continued validity is now further challenged by the internet and social media.