Extrajudicial Comments and the Special Responsibilities of Prosecutors: Failings of the Model Rules in Today's Media Age

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In a highly fractured decision, consisting of two separate 5-4 majority opinions, the United States Supreme Court confronted in Gentile v. Nevada State Bar the extent to which lawyers' extrajudicial speech should be curtailed when balanced against the competing risk of improper influence on a pending trial. (1) Today, nearly two decades after this ruling, Gentile remains the seminal judicial precedent in this area, but the behavioral standards that it establishes for proper and ethical trial publicity remain less than clear. The ever-increasing expansion and ubiquity of new forms of communication have led to high-profile cases, particularly criminal cases, routinely being tried in the press and lawyers frequently taking on the role of media consultant in addition to that of attorney. (2) "Unlike twenty years ago, when newspapers, radio and network television were the only media outlets, today there is media coverage 24 hours a day on television, cable, the web, faxes, cell phones, and other emerging media." (3) This nonstop pervasive media culture has generated increased potential for prejudice to such an extent that the delicate balance reached in Gentile may not provide adequate guidance to lawyers, and especially prosecutors, struggling with how to properly address or avoid the court of public opinion.

The debate over what limits should be imposed on lawyers' extrajudicial speech rests at the intersection of many competing legal, ethical, and constitutional values. (4) The integrity of the adversarial judicial system requires disputes to be resolved in open court based on the evidence presented, that parties be bound by the Same rules of evidence and procedure, and that extraneous influences be curbed so as to not unduly affect the proceedings. (5) Limits on trial publicity and extrajudicial statements in the criminal context are grounded, in large part, on a criminal defendant's right to a fair trial adjudicated by an impartial jury under the Sixth Amendment. (6) Given these constitutionally guaranteed rights to criminal defendants, the legal process has an "especially strong" interest in protecting criminal trials from outside influences. (7) Negative or prejudicial pre-trial speech is especially harmful to criminal defendants because such speech can result in allowing information that will not be admitted into evidence at trial to reach the public and taint the potential jury pool. The Federal Rules of Evidence state that although relevant, certain information can be so prejudicial that the trier of fact should not consider such evidence in evaluating the case. (8) As the Supreme Court has stated: "The exclusion of [inadmissible] evidence in court is rendered meaningless when news media make it available to the public." (9) By imposing restrictions on speech and other outside influences, however, these extrajudicial limits unavoidably implicate rights guaranteed by the First Amendment, which protects free speech rights of all citizens, including lawyers, (10) as well as the public's right to be informed. (11)

Lawyers in both civil and criminal cases, on both sides of the aisle, are additionally constrained by the Model Rules of Professional Conduct as to what can be said outside of the courtroom in extrajudicial comments to the media. (12) Prosecutors, however, are held to an even higher standard of conduct under the Model Rules, (13) as their unique role as "ministers of justice" can render their extrajudicial statements more prone to adversely affecting a criminal defendant's right to a fair trial. (14) The existing proscriptions on such behavior fail to effectively set a meaningful or predictable standard of conduct. The present ethical restrictions on trial publicity and extrajudicial statements, especially in the realm of prosecutorial misconduct, are "ambiguous, readily evaded and infrequently enforced." (15)

This Note begins with a brief history tracing the regulation of trial publicity and extrajudicial commentary involving lawyers generally, and prosecutors in particular. …


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