"'Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.' . . . From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent.
- Justice Tom C. Clark
- United States Supreme Court
- 1966
Any criminal case, whether the defendant is O. J. Simpson, Tonya Harding, or just some local miscreant charged with passing a bad check, involves the potential clash between the competing interests of the public's right to know about crimes committed in the community (and what law enforcement is doing about them) versus the suspect's right to a fair trial in front of an impartial judge and jury uninfluenced by media attention. Justice Clark's lament about the increase in inappropriate pretrial publicity in criminal cases was uttered over thirty years ago, long before the age of cable television, twenty-four hour news coverage, cash for trash tabloids, and the proliferation of sensationalized television newsmagazines, but his words are even more relevant today. Although less than one percent of criminal cases receive any publicity at all, those that do are covered by a press that has become more aggressive than ever, more hungry for a sensational news angle, and less willing to follow "the old journalistic ethics." Now more than ever, prosecutors, defense lawyers, and judges must know and follow established ethical guidelines concerning trial publicity. Failure to do so can have dire consequences.
DISCIPLINARY RULES
No prosecutor nor law enforcement officer should ever speak to the press without first reading and understanding the local state disciplinary rules based upon the American Bar Association's Model Code of Professional Responsibility; in Missouri, for example, these are Supreme Court Rules 3.6, 3.8 and 8.2. Failure to comply with them can subject the trial lawyer to civil suits, disciplinary complaints, contempt of court proceedings, mistrial or reversal of the verdict in the case.
The general rule concerning trial publicity is set out in the first paragraph of Rule 3.6:
A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
Although this language standing alone is so vague that it does not offer much guidance, and in fact has been found unconstitutionally void for vagueness, the specific paragraphs following it provide concrete examples of extrajudicial statements that are specifically prohibited.
COMMENTS AS TO CHARACTER, CREDIBILITY,
REPUTATION OR CRIMINAL RECORD
A trial lawyer is barred from making pretrial statements about "the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness." For example, when a Bronx District Attorney charged a defendant with loan-sharking, and held a press conference announcing that the defendant was "strongly connected to the Tramunti crime family," the comment associating the defendant with the mafia was clearly an inappropriate comment regarding the suspect's reputation. Likewise, statements that the person who has just been charged with child molestation is suspected of molesting other children in the past are obviously prohibited. Only if the defendant were charged as a persistent offender and the information about the criminal record was thus part of the public charging document would comment about his prior record be permissible.
POSSIBILITY OF PLEA OF GUILTY
The American Bar Association Model Code of Professional Responsibility specifically bars lawyers from commenting in advance about the possibility of a plea of guilty. The reasoning behind the rule is self-evident. If potential jurors read in the newspaper that the suspect is expected to plead guilty, the natural assumption in their minds is that he must be guilty. If the plea fell through, the jurors might be less able to give him the full presumption of innocence.
EXISTENCE OR CONTENTS OF CONFESSION
OR REFUSAL TO MAKE STATEMENT
Similarly, lawyers are strictly prohibited from releasing the fact that a suspect in a criminal case has confessed, the contents of that confession, or the fact that the suspect has refused to make a statement. This would seem to be the most violated pretrial publicity rule. It is almost impossible to pick up a newspaper in this "Age of Oprah" without reading a comment by some police officer or prosecutor announcing that a suspect has confessed.
PERFORMANCE OR RESULTS OF ANY EXAMINATION
OR TEST, OR IDENTITY OF PHYSICAL EVIDENCE
The rules unequivocally prohibit the release of information regarding "the performance or results of any examination or test or the refusal of a person to submit to an examination or test, or the identity or nature of physical evidence to be presented." For example, DNA test results, breathalyzer results, fingerprint analysis, lie detector tests, ballistics tests, mental examination results, and results of toolmark or fiber analysis are all prohibited from release to the media prior to verdict. Thus, a prosecutor was recently reprimanded by the Tennessee Supreme Court for disclosing to reporters immediately after a preliminary hearing in a murder case that the medical examiner's report showed that the "victim was strangled, stabbed in the chest multiple times and had his throat slashed all the way across," when the medical examiner had not been called as a witness at the hearing and that particular evidence had not yet come out in court.
OPINION AS TO GUILT OR INNOCENCE
Lawyers are expressly prohibited from making pretrial extrajudicial statements expressing their opinion as to the guilt or innocence of a criminal suspect. After President Kennedy was assassinated, but before Lee Harvey Oswald was himself killed, the Dallas District Attorney announced: "I think we have enough evidence to convict him now, but we anticipate a lot more evidence in the next few days." The Dallas Chief of Detectives opined: "We're convinced beyond any doubt that Oswald killed the President. I think the case is cinched." These comments are clearly examples of the prohibited variety. Similarly, a prosecutor was reprimanded in 1978 by the Utah Supreme Court for answering a reporter's question whether he expected to win his prosecution of a pornographer by bragging that he had investigated the prospective jurors and he was certain the defendant would not be acquitted since at least two of the jurors would cause the jury to be hung if it did not find for conviction. A Connecticut prosecutor was the subject of a bar complaint in 1997 after he unwisely speculated about the possible guilt of film director Woody Allen while explaining his decision not to charge him with a crime.
INADMISSIBLE EVIDENCE
Not surprisingly, lawyers are barred from making public pretrial comment about information they know or reasonably should know will be inadmissible as evidence during the trial. The basic premise upon which our criminal justice system is founded is that "the outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding." Chief Justice William Rehnquist has observed that '[e]xtrajudicial comments on, or discussion of, evidence which might never be admitted at trial . . . obviously threaten to undermine this basic tenet."
PRESUMPTION OF INNOCENCE
Ironically, a prosecutor may not even announce that he has charged a defendant with a crime unless he also includes the boilerplate language that "the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty." All prosecutors' offices and law enforcement agencies should include that statement in all press releases, even though it is unlikely the phrase will often survive a newsroom's editing pencil.
GENERAL NATURE OF CLAIM OR DEFENSE
The rules allow lawyers involved in the investigation or litigation of a case to state "without elaboration" the general nature of the claim or defense. In criminal cases, the safest interpretation of that language is to assume it allows disclosure of the text of the charge and nothing more. The Supreme Court, however, has found that the combination of allowing comments about the "general nature of the claim or defense" while prohibiting "further elaboration" is void for vagueness since "[t]he lawyer has no principle for determining when his remarks pass from the safe harbor of the general to the forbidden sea of the elaborated."
INFORMATION CONTAINED IN PUBLIC RECORD
The law specifically allows the lawyer to state information contained in a public record. Once again, this makes release of the text of a criminal charge appropriate. In some cases, other facts would be contained in probable cause affidavits accompanying arrest warrant complaints or search warrant applications. When such affidavits exist, it would seem better practice for the trial lawyer to simply steer the reporter to the applicable public record rather than have the attorney pontificate about the facts on the courthouse steps. Existing law suggests that it is unethical for a lawyer to put facts into a public document merely to get around the rule prohibiting pretrial public disclosure.
THE SCHEDULING OR RESULT OF ANY
STEP IN LITIGATION
Lawyers are allowed to inform the media about the scheduling or result of any step in litigation. Again, though, such notification is to be done "without elaboration."
REQUEST FOR ASSISTANCE
IN OBTAINING EVIDENCE
Lawyers are allowed to make requests of the public for assistance in obtaining evidence. For example, when an unidentified murder victim was dumped in Cape Girardeau County, Missouri, law enforcement authorities prepared fliers showing the face of the victim and asking for help in identifying him. Shortly afterward, the victim's brother in St. Louis saw the flier on television and identified the body.
WARNING TO THE PUBLIC OF DANGER
Similarly, lawyers are allowed to issue warnings to the public of danger "concerning the behavior of a person" when there is reason to believe the likelihood of substantial harm exists to an individual or to the public. For example, if a known murderer escaped from the county jail and was thought to be armed, quite a bit of detail concerning the case could be released publicly in order to protect the community.
IDENTIFIERS IN A CRIMINAL CASE
The law specifically allows release in a criminal case of information about "the identity, residence, occupation and family status of the accused." The reasoning is obvious. Several people might be named John Smith. In order to protect the reputations of the innocent John Smiths of the world, detailed information identifying the charged John Smith may be released. For this reason, mug shots should be considered part of the information allowed to be released to show identity.
INFORMATION NECESSARY TO AID IN APPREHENSION
If the accused has not been apprehended, the law allows authorities in a criminal case to release "information necessary to aid in apprehension of that person." Logically, this would include information relating to personal characteristics of the suspect or certain details of the case that would not ordinarily have been proper to disclose.
THE FACT, TIME AND PLACE OF ARREST
In a criminal case, attorneys involved in the litigation may release, without elaboration, information concerning "the fact, time and place of arrest," and "the identity of the investigating and arresting officers or agencies and the length of the investigation." Thus, law enforcement officers and agencies involved in a successful investigation may reap immediate public recognition for their work, but the details of the case must not be publicly disclosed until after trial.
POST-TRIAL COMMENT
Chief Justice Rehnquist has noted that Rule 3.6 "merely postpones the attorney's comments until after the trial." When it is over, the lawyers may comment upon the evidence, subject only to the same defamation or other suits anyone else would face for false or actionable statements. After completion of the trial but prior to sentencing, however, counsel for both the prosecution and defense should refrain from making statements that would have a substantial likelihood of prejudicing the sentencing. It has been held, though, that the prosecutor may make comments praising the jury for its verdict and the message sent.
DUTY OF PROSECUTOR TO EDUCATE LOCAL POLICE
The prosecutor in a criminal case has the duty to "exercise reasonable care" to prevent law enforcement officers or other persons associated with him from making extrajudicial statements that he would be prohibited from making under Rule 3.6. Thus, a chilling prospect for a prosecutor is that he could be subject to disciplinary proceedings for comments a law enforcement officer in his jurisdiction makes to the media. The unpleasant possibility should have every prosecutor in the nation conducting seminars in pretrial publicity for the police agencies in his jurisdiction.
FALSE OR RECKLESS COMMENTS
ABOUT THE INTEGRITY OF JUDGES
Every lawyer has at times been frustrated by an unfavorable ruling from a judge. When microphones are shoved toward the unhappy litigator outside the courtroom, however, he must remember that the law prohibits a lawyer from making "a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity" about "the qualifications or integrity" of a judge or candidate for judicial office. Thus, when a Missouri prosecutor told a television audience that he felt the appellate judge who wrote a decision reversing a conviction had been "a little bit less than honest," the prosecutor was reprimanded by the Supreme Court. The Court did not buy the prosecutor's explanation that he had simply meant that the judge had been "intellectually dishonest" by knowing the conclusion he wanted to reach in advance and then stretching logic to reach it.
SANCTIONS
Although a change of venue, the voir dire process and sequestration of the jury can usually cure any potential harm from pretrial publicity and adequately safeguard a defendant's right to a fair trial, convictions have upon occasion been reversed due to pretrial publicity. In a case where the defendant's videotaped confession to the Sheriff was played on television prior to trial in the county where the case was tried, the United States Supreme Court reversed the conviction without even finding it necessary to read the text of the voir dire examination, stating that the televised confession "in a very real sense was [defendant's] trial -- at which he pleaded guilty to murder" and observing that any subsequent proceedings "in a community so pervasively exposed to such a spectacle could be but a hollow formality."
A mistrial is a possibility in situations where the jury has been exposed to publicity during the course of the trial and the judge believes cautionary instructions would be useless.
Contempt of court powers may be used by the trial judge to control improper extrajudicial comment by attorneys and witnesses in the case. Gag orders have been held to be permissible, with violations punishable by contempt.
Disciplinary proceedings for ethical violations could result in anything from reprimands to suspension or disbarment. Even if totally vindicated, being the target of a bar complaint is never pleasant. Ron Hoevet, the attorney for Jeff Gillooly, then-husband of Tonya Harding, was the subject of more than two dozen bar complaints for comments he made at a press conference and appearances on Larry King Live and Nightline, all made on the day of Gillooly’s guilty plea. Although he was ultimately exonerated of any professional misconduct, his fight to clear himself was undoubtedly time-consuming and expensive.
Although attorneys are protected from civil suits for things they say in the courtroom, that same protection does not apply to interviews to the press on the courthouse steps. Lawyers can face suits for slander for comments to the media. In addition to slander suits, prosecutors can also face civil rights suits for things they say to the media. Although a prosecutor enjoys absolute immunity for his charging decisions and for the things he says in court, he only has qualified immunity for things he says to the press. Qualified immunity means that the prosecutor performing a discretionary function (talking to the press) can avoid liability for civil damages as long as his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A prosecutor following the American Bar Association’s Model Code of Professional Responsibility Rules 3.6, 3.8 and 8.2 would undoubtedly be protected by qualified immunity. One who strays beyond the bounds of the rules does so at his own risk and loses his immunity from suit.
APPLICABILITY OF FEDERAL FREEDOM OF
INFORMATION ACT AND STATE SUNSHINE LAWS
The federal Freedom of Information Act contains a provision exempting law enforcement investigation files from the normal disclosure requirements. Likewise, almost every state's "Sunshine Law" exempts criminal investigation files. As the Kansas Supreme Court has noted:
[T]he legislature's intent in enacting [the exemption for criminal investigation files] is clear. Criminal investigation files are sensitive. Raw investigative files nearly always include the names of many innocent people. Where the files are open to public scrutiny, the potential for injury is great. In addition, if criminal investigation files are open, many people with information which might lead to a resolution of the investigation will refuse to disclose such information. Investigations will be badly hampered. Thus, only under very restricted circumstances may the district court require disclosure.
Even in states where the local "Sunshine Law" does not address the issue of whether criminal investigation files are exempt from disclosure, strong public policy reasons support restricting the release of detailed investigative reports. Otherwise, drug dealers in pending investigations could march into the police station and demand the names, addresses and photographs of all undercover drug officers, and a rapist whose victim had seen his face could stroll into the sheriff's department and demand her name and address so he could kill the only witness alive to identify him. Using the latter hypothetical as an example, the Missouri Court of Appeals held that in spite of the wording of Missouri’s "Sunshine Law" at the time, a police department was not required to publicly disclose the name and address of a rape victim in a case where the perpetrator had not yet been arrested and identified.
CONCLUSION
In an era where remaining professional can sometimes be difficult, prosecutors need to remember that they are the most visible representatives of the legal profession. As ministers of justice charged with the duty of ensuring each defendant a fair trial, prosecutors have an even greater responsibility to avoid public comment upon substantive aspects of a pending case than do defense attorneys. In order to protect both the rights of the accused and the dignity of our profession, our duty is to try our cases in the courtroom, not in the media.
FOOTNOTES (omitted)