Legal Ethics and Criminal Confessions. (Media/Law)
Jones, Ken, St. Louis Journalism Review
Pay close attention next time you come across a report about the arrest of a criminal suspect, especially in a high-profile case.
You're likely to hear the prosecutor comment on whether the suspect is cooperating with authorities or has admitted the charges.
It happened recently in the case of Rev. Bryan Kuchar, charged with sexually abusing a 14-year-old boy. Kuchar's case went to trial in May and ended in a mistrial with a 6-6 jury deadlock.
When Kuchar was arrested last year, the St. Louis Post-Dispatch wrote an article stating: "Prosecutors said the Rev. Bryan Kuchar, 36, admitted to police that he sexually abused the boy in 1995 when he was associate pastor at Assumption Church in Mattese in south St. Louis County."
The article also quoted St. Louis County Prosecutor Robert McCulloch: "Frankly, he's been very cooperative with officers and this investigation."
I remember prosecutors making similar remarks on television newscasts about the Kuchar case.
There's just one problem. Commenting on supposed admissions and cooperation by criminal suspects is a no-no under the ethical rules that regulate lawyers in Missouri.
Despite the clear prohibition. Prosecutors--and defense attorneys--routinely violate the rule.
The relevant regulation is Rule of Professional Conduct 3.6, which governs "trial publicity." Rule 3.6 says: "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."
The rule further provides that in a criminal case prejudice is likely to exist when the statement relates to "the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement."
Furthermore, lawyers are precluded from giving "any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration."
What can be discussed in a criminal case? The list of items is pretty limited:
* "The identity, residence, occupation and family status of the accused."
* "If the accused has not been apprehended, information necessary to aid in apprehension of that person."
* "The fact, time and place of the arrest."
* "The identity of investigating and arresting officers or agencies and the length of the investigation."
The rationale behind the trial publicity rule is clear--to keep potential jurors free of bias when they wind up in the courtroom several months later for the trial. If a prosecutor is allowed to go on television and declare that the suspect has admitted the crime--even if that's true--it will be difficult, if not impossible, for jurors to avoid prejudging the case. …