From the Court of Public Opinion to a Court of Law: How Voir Dire Impacts the Effects of Pre Trial Publicity.

• Author: Patrick, Wendy L.

Congratulations, you have been selected to prosecute a high-profile serious case of interest to the public. This important obligation will involve meticulous case organization, and proactive preparation. Although your chain of command and elected prosecutor will decide how much information to share, your role may include participating in pre-trial interviews or holding a press conference, where you will present publicly appropriate and ethically permissible information, and emphasize the importance of maintaining community safety and achieving justice for victims.

But there is one thing every high profile case has in common: concern about preserving the defendant's right to a fair trial. Beyond truthful, accurate information about the case, it is overly prejudicial, unfair, adverse publicity, much of which is generated within the court of public opinion, that compromises the ability of future fact finders to evaluate your evidence with fairness and integrity.

CONTROLLING PRETRIAL PUBLICITY

When a high-profile suspect is accused of a crime, he or she may be arrested, tried, and convicted within the court of public opinion before a single piece of evidence is discussed in a court of law. Accordingly, a significant portion of high profile case publicity is outside of our control.

Regarding prosecutorial communication, ethically, all of our states have adopted some version of ABA Model Rule of Professional Conduct 3.6, which prohibits an out of court statement that a lawyer "knows or reasonably should know" will be disseminated through public communication and "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

But realistically and practically, regardless of a prosecutor's statements, judges are often faced with the question of how to mitigate the impact of adverse, potentially unfair, publicity. If a judge decides that pretrial publicity is so pervasive that the defendant cannot be fairly tried in his or her home jurisdiction, a motion for a change of venue might be granted.

Moving a trial to another jurisdiction is an inconvenient and costly endeavor strategically, financially, physically, and even emotionally. It is challenging for the prosecution team, having to be away from their homes, their families, and their office resources for often an extended period of time, because high profile cases are often prolonged. The challenges involved also include coordinating the transportation of...