The prosecutor's duty of silence.

• Author: Gershman, Bennett
• Position: Elephants in the Courtroom: Examining Overlooked Issues in Wrongful Convictions

1. INTRODUCTION

   Prosecutors enjoy a broad array of opportunities to communicate with the public outside the courtroom. Justice Holmes's famous dictum--that "[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument ... and not by any outside influence, whether of private talk or public print" (1)--is just that, a theory. The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher--a "special"--duty to serve justice rather than a private client. (2) Yet prosecutor speech is ubiquitous, often carefully orchestrated, and very often hard-hitting. With the collaboration of the media, prosecutors hold press conferences and issue press releases, give briefings and interviews with reporters, post Internet and Twitter comments, appear as TV "experts," speak in public forums, and write books about their exploits. (3) They have also used the notorious "perp walk" as a form of communication and have been known to leak confidential information. (4)

   As Justice Holmes intimated, a prosecutor's public statements are potentially dangerous. Given a prosecutor's high standing with the public as a "Champion of Justice" sworn to uphold the law and punish wrongdoers, a prosecutor has a unique ability to shape public opinion not only about fighting crime but also about specific individuals who may be under investigation and prosecution. And with the ability of the media to saturate the public with pervasive, repetitive, and often inflammatory news coverage about a case, a prosecutor's public statements almost always have the potential to prejudice future jurors in that case and thereby inflict prejudice to persons suspected or charged with wrongdoing. (5) Indeed, a prosecutor's public statements can destroy a person's reputation, prejudice his right to a fair trial, and undermine the public's respect for the way the criminal law is administered. And most tragically, a prosecutor's public statements can contribute to the conviction of innocent persons. (6)

   The power of the prosecutor, combined with the influence of the media, makes for a dangerous combination. The symbiotic relationship between prosecutors and the media is well known. While banner headlines and incendiary news coverage garner prosecutors free publicity and significant leverage in getting convictions, (7) the close collaboration with prosecutors gives the media special access to confidential information and the ability to break stories and then spin them to a large and receptive audience. To be sure, some prosecutor speech is legitimate and necessary. Speech by prosecutors may serve significant public interests--informing the public about law enforcement initiatives, alerting the public to dangerous situations, and seeking assistance from the pubic in investigating crimes and fugitives. But a considerable amount of prosecutor speech is illegitimate, unnecessary, and prejudicial. When a prosecutor campaigns on the death penalty, or the rights of victims, or testifies before a legislative body on law enforcement initiatives to fight terrorism, there may be no direct and specific prejudice to any pending or impending prosecution. However, when a prosecutor comments about specific cases, discusses the evidence and the defendant's character, and offers opinions about the credibility of witnesses and the defendant's guilt, the prosecutor crosses the line.

   Admittedly, the line between legitimate and illegitimate prosecutor speech is not clear-cut. A prosecutor who seeks to inform the public about law enforcement initiatives against terrorism--undoubtedly a legitimate topic--may intentionally or inadvertently identify individuals who are suspected of being part of a terrorist cell, link them to a broader terrorist conspiracy, and opine on the strength of the government's evidence. (8) And if these individuals are later charged with criminal conduct, their right to a fair trial may be compromised by the prosecutor's comments. (9) Further, the occasional efforts of courts and disciplinary bodies to hedge prosecutor speech, especially speech that flirts near the line, is often frustrated by vague legal and ethical standards, as well as the ability of some prosecutors to find ways within those standards to circumvent limitations on their speech. For these reasons, although prosecutors occasionally are disciplined for speech that violates the rules, (10) or chastised by the courts, (11) sanctioning prosecutors for irresponsible speech is infrequent and often ad hoc. And hanging in the balance, of course, is the ever-present risk that unregulated or weakly-regulated prosecutor speech continues to impair the fair and evenhanded functioning of the criminal justice system, the confidence of the public in the integrity of the system, and the reputation and liberty of persons thrust into the system and facing the glare of public accusation and prosecution. (12)

   Prosecutor speech is not fungible. Application of the legal and ethical rules that regulate a prosecutor's extrajudicial statements depends on the role the prosecutor is performing when engaging in public speech. When communicating with the public, a prosecutor occupies three distinct roles. First, a prosecutor in the vast majority of U.S. jurisdictions is an elected official who, when campaigning for office, has the right to inform the public about the qualities and characteristics that make him and his office the best-qualified for the position. (13) Second, a prosecutor, as the chief law enforcement official in the jurisdiction, has the duty to inform the public about criminal justice policy, threats to public safety, law enforcement initiatives, and precautions the public can take to protect its safety. (14) Third, a prosecutor is an advocate who has a dual responsibility to convict the guilty and protect the innocent. (15) This advocacy role carries the greatest potential to inflict harm. As an advocate, a prosecutor has a right to inform the public about investigative and prosecutorial actions his office is undertaking without endangering the right of those persons accused of crimes to be treated fairly and impartially throughout the criminal justice process. (16)

   The modes of speech by prosecutors and the protection afforded public speech vary with the role then being played by the prosecutor. Campaign speech, and speech on matters of public concern, enjoy the greatest protection because such speech typically is seen as legitimate and necessary to the democratic process and to core functions of the prosecutor's work. (17) But when a prosecutor speaks in the role of an advocate, and makes statements about current prosecutions, such statements have the capacity to prejudice future criminal proceedings. (18) It is with respect to advocacy speech that a prosecutor has to be most careful, and except for limited facts about a case, a prosecutor as a general rule has a duty to refrain from speaking. (19)

   To be sure, many prosecutors carefully weigh the necessity of their public speech with the danger of public misinformation or of compromising a defendant's right to a fair trial. But, equally obvious is the fact that politics, power, and ego can drive much of prosecutor speech. And with social media, the internet, and the close relationship between a prosecutor and a voracious media eager and able to obtain and disseminate widely a prosecutor's statements, the danger to the system, and those accused of crime, is apparent. As demonstrated below, despite some very clear rules and standards, regulation of prosecutor speech is piecemeal and inconsistent. The prosecutor's duty of silence may finally depend on the prosecutor's own sense of fair play, justice, and ability to exercise self-restraint.

   Part II describes the various modes of prosecutor speech, and the various roles of the prosecutor when speaking publicly. As I demonstrate, a prosecutor can occupy three separate roles when speaking: first, as a candidate for office engaged in campaign speech; second, as a law enforcement expert speaking on matters of public concern; and third, as an advocate speaking about pending or impending cases. Part III describes the various legal and ethical rules and standards that regulate and restrict a prosecutor's extrajudicial speech. Finally, Part IV explains why a prosecutor when engaged in speech as a partisan advocate has a duty to refrain from speaking except for the basic information about cases he is currently investigating and prosecuting.

2. TAXONOMY OF PROSECUTOR SPEECH

   1. By Role

      It is apparent that the permissible scope of a prosecutor's public speech depends on (1) the role that the prosecutor is performing; and (2) the forum in which the speech occurs. (20) That is, a prosecutor communicating with the public may do so in three roles: (1) as a campaigner for public office; (2) as a public official educating and informing the public about issues of public importance; and (3) as an advocate. (21)

      Thus, when a prosecutor runs for public office he engages in speech that typically is afforded the greatest protection; campaign speech occupies a core function of First Amendment freedom. (22) Next, when a prosecutor communicates with the public about matters of public concern, including matters that affect the administration of justice, public safety, and law enforcement policies, his speech is scrutinized more closely than campaign speech, but still is afforded considerable constitutional protection. (23) However, when a prosecutor functions in the role of an advocate, and makes extrajudicial statements about specific cases, his public statements are scrutinized much more closely and are subject to the greatest restrictions in order to protect a defendant's right to a fair trial. (24)

      1. Campaign Speech

         The vast majority of...