Fair Trial Versus Free Speech

Trial Publicity

Fair Trial Versus Free Speech

A prosecutor leaves a pretrial hearing and tells the reporters outside about a damaging item the judge has just ruled the jury may never hear. The ruling stands, yet the community that will supply the jurors now knows the item anyway. Inside the courtroom, the judge controls what reaches the jury through objections, cross-examination, and rulings on admissibility. A statement to the press passes through none of those filters. Model Rule 3.6 closes that gap by regulating what lawyers who work on a matter say to the public outside the courtroom.¹

The lawyer's words do special damage because of who is speaking. A lawyer is a participant in the legal process and carries an obligation to preserve the right to a fair trial. A participant may be seen as having greater authority, and may gain extra credibility from presumed access to inside information, so a prejudicial extrajudicial statement from a lawyer can severely compromise that right.²

The Supreme Court confronted the problem in Sheppard v. Maxwell. The Court found that the "carnival atmosphere" at trial could easily have been avoided, because the courtroom and courthouse premises are subject to the court's control. It added that the press's presence at judicial proceedings must be limited when the accused might otherwise be prejudiced or disadvantaged.³ Defense counsel had told the judge that the Cleveland press was misrepresenting the testimony. The Court said the judge should at least have warned the newspapers to check their accuracy, and should have gone further by controlling what counsel, witnesses, and especially the Coroner and police officers told the media.⁴ The leaks came from those sources. The prosecution repeatedly gave the media evidence that was never offered at trial, and much of it was clearly inadmissible. Publicity about Sheppard's refusal to take a lie detector test came directly from police officers and the Coroner. The Court's conclusion states the mechanism that Rule 3.6 targets: the exclusion of evidence in court is rendered meaningless when the news media make that evidence available to the public.⁵

The Court's prescription therefore focused on the people who fed the press. It called collaboration between counsel and the press about information affecting the fairness of a criminal trial "highly censurable and worthy of disciplinary measures." It also predicted that if the judge, other court officers, and the police had put the interest of justice first, the news media would soon have learned to report the case as it unfolded in the courtroom, not pieced together from extrajudicial statements.⁶ Rule 3.6 turns that disciplinary concern into a rule of professional conduct.

Courts also have tools of their own, and Sheppard lists them. The judge must conduct an intensive voir dire of prospective jurors to confirm that publicity has not clouded their presumed impartiality. Sequestration then shields the seated jury from the opinions and possible intimidations of an aroused community. If press accounts of the crime and its investigation have already made those measures inadequate, the judge should consider a continuance or a change of venue.⁷ The Court added that when prejudicial pretrial news creates a reasonable likelihood of an unfair trial, the judge should continue the case until the threat abates or transfer it to a county not so permeated with publicity. Sequestration is something the judge should raise on his own initiative, and if publicity during trial threatens fairness, a new trial should be ordered.⁸ Every one of these measures works on the jury or the calendar after the statement has been made. None of them stops the statement.

That is why the regulation of trial publicity falls on lawyers. Another opinion reasoned that court personnel and attorneys, as officers of the court, have a fiduciary responsibility not to engage in public debate that will harm the accused or obstruct the fair administration of justice. It added that the court likely has power to control their release of information and to impose suitable limitations, with disciplinary proceedings as the consequence of a violation.⁹ A lawyer is both a source of the prejudicial material and an officer of the court, so a rule aimed at lawyers reaches the leak at its origin.

The rule cannot simply forbid lawyers to talk, because the fair-trial obligation is only one side of the balance. The rule expressly allows statements on matters that are unlikely to cause prejudice or that carry a strong public interest in disclosure. It also gives the lawyer a right of fair response to protect a client against prejudicial publicity that someone else started.¹⁰ The prohibition itself is narrow. It applies only when each of four conditions is met:

• The speaker is a lawyer who is participating or has participated in the investigation or litigation of the matter.
• The lawyer makes an extrajudicial statement.
• The lawyer knows or reasonably should know that the statement will be disseminated by means of public communication.
• The statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.¹¹

The sections that follow take up the pieces in turn: who counts as a covered lawyer, which topics are presumptively prejudicial, the permitted statements, the First Amendment limits recognized in Gentile, the right of reply, associated lawyers, the special duties of prosecutors, and the accuracy and defamation risks that attend any public statement. On an exam, the same order works. Start with the general prohibition, then ask whether a permitted-statement category or the right of reply takes the statement outside it.