Special Prosecutor Duties

A prosecutor who speaks to the press answers to two rules at once. Rule 3.6(a) reaches every lawyer who is participating or has participated in a matter, and it forbids a public extrajudicial statement that the lawyer knows or reasonably should know will be disseminated and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.¹ Rule 3.8(f) lays a stricter limitation on prosecutors alone.² A prosecutor whose statement has a substantial likelihood of heightening public condemnation of the accused therefore violates Rule 3.8(f), even if the statement would pass the Rule 3.6 test.³

The two rules measure different things. Rule 3.6(a) measures a statement’s likely effect on the proceeding; Rule 3.8(f) measures its likely effect on how the public regards the accused. Paragraph (f) imposes two duties on the prosecutor. The first restrains the prosecutor’s own comments, with a narrow exception for informing the public of what the office has done. The second makes the prosecutor answerable for taking reasonable care that investigators, police, employees, and others around the case do not make statements the prosecutor could not make. A stem that puts a prosecutor before the press calls for the Rule 3.6 analysis first and these two duties second.

Heightening Public Condemnation

Rule 3.8(f) bars a prosecutor from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused, “except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose.”⁴ The duty sits on top of Rule 3.6, so a prosecutor who speaks publicly must satisfy both rules at once.⁵

The two rules guard against different harms. Rule 3.6(a) asks whether a covered lawyer’s public statement carries a substantial likelihood of materially prejudicing the proceeding itself.⁶ Rule 3.8(f) moves the target from the proceeding to the person, because beyond any effect on a criminal proceeding, a prosecutor’s unnecessarily condemnatory statements about someone cause immediate and lasting harm.⁷ That harm occurs when the public hears the remark, whether or not any juror does, so a comment can leave the trial untouched and still violate the rule. A prosecutor can pass the Rule 3.6 forecast and fail Rule 3.8(f), which is why the second rule exists.

The exception has two conditions, and a statement must meet both. First, it must be necessary to inform the public of the nature and extent of the prosecutor’s action, which ties the content to what the office itself has done, such as filing a charge or making an arrest. Second, it must serve a legitimate law enforcement purpose, which requires some job for the statement to do beyond publicity. A prosecutor can test a draft remark by asking whether it explains the office’s actions or simply heaps further opprobrium on the accused. The recognized purposes give the exception its content:

Explaining the legal process and the steps the prosecution is taking, in an educational and informational manner.
Seeking the public’s help when evidence and witnesses are being sought.
Calmly assuring the public that a danger has passed, while taking care not to opine directly on the guilt of the accused.
Alerting the public that a danger exists, as when a suspect in an ongoing crime wave has not been identified or an armed and dangerous fugitive remains at large.⁸

Each purpose points outward, to a need the office is meeting. Explaining the process informs the public about the system, a request for witnesses is an investigative step, and an assurance or a warning protects safety. None of them calls for a characterization of the accused, which is why an assurance that a danger has passed must be worded so that it does not become a declaration of guilt.

The prosecutor in Missouri v. Polk posted on Twitter while a rape case was being tried, and one post read: “I have respect for attys who defend child rapists. Our system of justice demands it, but I couldn’t do it. No way, no how.”⁹ The appellate court doubted that using social media to highlight the evidence against the accused and publicly dramatize the plight of the victim serves any legitimate law enforcement purpose or is necessary to inform the public of the nature and extent of the prosecutor’s actions, and it added that broadcasting that the accused is a “child rapist” is likely to arouse heightened public condemnation.¹⁰ Those two concerns track the two halves of the exception and the harm the rule targets: the posts explained no step in the process, sought no evidence, and warned of no danger, and the label invited the public to treat the accused as guilty. The court nonetheless found no evidence that jurors were influenced and did not find prejudice, so the decision works as a warning to prosecutors and does not turn on a showing that the verdict was affected.¹¹

Compare an announcement that an armed and dangerous suspect remains at large, paired with a request that anyone with information come forward. That statement falls on the permitted side of the line, because it tells the public what the office is doing, asks for help in an investigation, and warns people of a danger.¹² It needs no characterization of the person sought beyond the facts that make the warning useful. In both situations a prosecutor addresses the public about a pending matter, and the difference lies in the link between the words and a law enforcement need.

Exam Analysis Steps

Because a prosecutor must satisfy both rules, the safest way to test a public statement is in sequence, adding the Rule 3.8(f) questions after the Rule 3.6 analysis. The steps are these:

Run the Rule 3.6 analysis by asking whether the speaker is a covered lawyer, whether the statement is public and extrajudicial, and whether it carries a substantial likelihood of materially prejudicing the proceeding, and check the safe harbors in paragraphs (b) and (c).
Ask separately whether the comment carries a substantial likelihood of heightening public condemnation of the accused, whatever the answer under Rule 3.6.
If it does, ask whether the statement is necessary to inform the public of the nature and extent of the prosecutor’s action, such as the charge, the arrest, a step in the process, or what the office is doing.
Ask whether the statement also serves a legitimate law enforcement purpose, and treat a statement that fails either condition as a violation of Rule 3.8(f).

The most common slip is to carry the result from step one into step two. A finding that a remark poses little risk to the trial says nothing about its effect on the public’s view of the accused, and the exception is available only when both of its conditions are present.

The restriction ends with the case. Once a trial has reached its natural end with a verdict, the disposition of post-trial motions, and a sentence, and the prosecutor reasonably believes that the prospects of an appellate reversal and retrial are small, the restrictions in Rules 3.6 and 3.8(f) are lifted.¹³ The prosecutor may then describe the events leading to the charges and the course of the prosecution in broader context, subject only to special rules of confidentiality such as those attaching to grand jury proceedings or a juvenile matter.¹⁴

Controlling Law Enforcement Statements

Rule 3.8(f) adds a second duty to the one that restrains a prosecutor’s own comments: the prosecutor must “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”¹⁶ Many people work a criminal case, and the public often hears about it first from the detectives who made the arrest or the staff who take calls from reporters. Without this duty, the prosecutor could not announce a confession but a detective could, and the limits in Rule 3.6 and in the first clause of Rule 3.8(f) would be defeated through an intermediary. The duty runs through the prosecutor because the nonlawyers who do the speaking are not themselves subject to professional discipline for violating these rules.¹⁷

Two features of the text set the scope of the duty. The first is its benchmark: the prosecutor must prevent only statements that the prosecutor would be prohibited from making, which means public comments with a substantial likelihood of materially prejudicing the proceeding under Rule 3.6(a), together with the comments that Rule 3.8(f) itself forbids.¹⁸ Statements that the prosecutor is free to make, such as information contained in a public record or the fact, time, and place of an arrest, fall outside the duty, because a detective who repeats them has done nothing the prosecutor was required to stop.¹⁹ The second feature is the standard of care. The rule asks for reasonable care and does not make the prosecutor an insurer against everything others say, so the prosecutor is measured by what lies within the prosecutor’s power to do.

For people who are employees of the prosecutor’s office or subject to its disciplinary supervision, the duty is a specific application of Rule 5.3, which directs managerial and supervisory lawyers to make reasonable efforts to ensure that nonlawyer assistants behave in a manner compatible with the lawyer’s professional obligations.²⁰ The prosecutor can instruct these people and answer for the instruction, so reasonable care is demanding in this setting: the prosecutor must see that those working in the office understand and obey the limits on extrajudicial statements.

The duty looks different when the people assisting the prosecutor sit outside the office. State and county prosecutors frequently have little or no supervisory control over the police who investigate the crimes they prosecute.²¹ A prosecutor who cannot instruct or discipline the police cannot keep them quiet by command, so reasonable care becomes a matter of clear notice. Comment 6 to Rule 3.8 states the practical result: “[o]rdinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.”²²

The caution has to be a real one. Guidance to police and other personnel should not be perfunctory, and it should not suggest that the standards matter less because the rules are not directly enforceable against nonlawyers outside the prosecutor’s supervision.²³ The message should explain that the courts adopted these standards as important protections for a fair, just, and honorable criminal justice system. A form memo sent without explanation invites an officer to treat the limits as a lawyers’ technicality.

A stem in which a detective tells reporters that the suspect confessed will ask whether the prosecutor violated Rule 3.8(f), and the detective’s words cannot answer that question. The answer lies in what the prosecutor did beforehand.

Hypothetical Illustration

A county prosecutor knows that the sheriff’s detectives plan to brief the press on a high-profile arrest, yet she gives them no guidance about what they may say. At the briefing, a detective announces that the suspect confessed. The confession is a topic the prosecutor could not have announced herself, and she took no step to keep it from being disclosed, so she did not exercise reasonable care.

In a neighboring county, another prosecutor learns of a similar briefing. He sends written cautions to every agency involved and explains that the standards protect the fairness of the trial. A detective disregards the cautions and tells a reporter about a confession anyway. The detective’s words are the same as in the first county, but this prosecutor has met the reasonable-care standard.

The two scenes differ in the prosecutor’s conduct, since the statements were identical. That is what it means to call the duty a standard of care: a speaker’s breach does not by itself establish the prosecutor’s breach.

Police who are not lawyers cannot be disciplined under these rules, but their compliance still matters. Good-faith observance of the guidelines in Rules 3.6 and 3.8 by law enforcement, or the lack of it, presumably would be a factor a court considers when ruling on a defendant’s motion for a change of venue or for a mistrial because of prejudicial publicity.²⁴ Prosecutors therefore have a practical reason, in addition to the disciplinary one, to put cautions in writing and to make them specific.

Defense counsel stand in a different position. Rule 3.8(f) by its terms binds prosecutors, yet the expectation that a lawyer will control the conduct of associates and assistants stands in other proceedings as well, because Rule 8.4(a) treats knowingly assisting or inducing another to violate the Rules as misconduct, and Rule 5.3 directs a supervising lawyer to make reasonable efforts to keep nonlawyer assistants within the lawyer’s professional obligations.²⁵ A defense lawyer who sends an investigator to brief reporters on prejudicial matters has acted through the investigator, so the analysis moves from this duty to those two rules.

Exam Analysis Steps

Because the duty turns on what the prosecutor did to prevent a statement and not on the statement alone, an exam answer is best run in four moves. The steps are these:

Identify the speaker and the speaker’s relationship to the prosecutor, separating a lawyer who is participating in the matter, who is bound directly by Rule 3.6(a), from an investigator, employee, or police officer, whose statement engages the prosecutor’s duty of care.
Ask whether the statement is one the prosecutor would be prohibited from making under Rule 3.6 or Rule 3.8, remembering that statements within the permitted categories are outside the duty.
Ask whether the speaker is an employee or under the office’s disciplinary supervision, in which case reasonable care means making sure the person understands and obeys the limits, or sits outside the office, in which case it ordinarily means giving clear, non-perfunctory cautions.
Evaluate what the prosecutor actually did, keeping in mind that the speaker’s violation alone does not establish a breach of the duty, although police compliance may bear on venue and mistrial motions.