Criminal Justice Section  

   Standards

FAIR TRIAL AND FREE PRESS

PART I.

CONDUCT OF ATTORNEYS IN CRIMINAL CASES

Standard 8- 1.1    Extrajudicial statements by attorneys

(a) A lawyer should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.

(b) Statements relating to the following matters are ordinarily likely to have a substantial likelihood of prejudicing a criminal proceeding:

(1) the prior criminal record (including arrests, indictments, or other charges of crime) of a suspect or defendant;

(2) the character or reputation of a suspect or defendant;

(3) the opinion of the lawyer on the guilt of the defendant, the merits of the case or the merits of the evidence in the case;

(4) the existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make a statement;

(5) the performance of any examinations or tests, or the accused's refusal or failure to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

(6) the identity, expected testimony, criminal record or credibility of prospective witnesses;

(7) the possibility of a plea of guilty to the offense charged, or other disposition; and

(8) information which the lawyer knows or has reason to know would be inadmissible as evidence in a trial.

(c) Notwithstanding paragraphs (a) and (b), statements relating to the following matters may be made:

(1) the general nature of the charges against the accused, provided that there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty;

(2) the general nature of the defense to the charges or to other public accusations against the accused, including that the accused has no prior criminal record;

(3) a request for assistance in obtaining evidence;

(4) information necessary to aid in the apprehension of the accused or to warn the public of any dangers that may exist;

(5) a request for assistance in obtaining evidence;

(6) the existence of an investigation in progress, including the general length and scope of the investigation, the charge or defense involved, and the identity of the investigating officer or agency;

(7) the facts and circumstances of an arrest, including the time and place, and the identity of the arresting officer or agency;

(8) the identity of the victim, where the release of that information is not otherwise prohibited by law or would not be harmful to the victim;

(9) information contained within a public record, without further comment; and

(10) the scheduling or result of any stage in the judicial process;

(d) Nothing in this standard is intended to preclude the formulation or application of more restrictive rules relating to the release of information about juvenile offenders, to preclude the holding of hearings or the lawful issuance of reports by legislative, administrative, or investigative bodies, to preclude any lawyer from replying to charges of misconduct that are publicly made against him or her, or to preclude or inhibit any lawyer from making an otherwise permissible statement which serves to educate or inform the public concerning the operations of the criminal justice system.

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Standard 8- 1.2    Rule of court

Unless adopted by statute or pursuant to the supervisory authority of the highest court in the jurisdiction, the substance of standard 8-1.1 should be adopted as a rule of court governing the conduct of attorneys.

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PART II.

CONDUCT OF LAW ENFORCEMENT OFFICERS, JUDGES, AND COURT PERSONNEL IN CRIMINAL CASES

Standard 8- Standard 8-2.1 Release of information by law enforcement agencies

(a) The provisions of Standard 1.1 should be applicable to the release of information to the public by law enforcement officers and agencies.

(b) Law enforcement officers and agencies should not exercise their custodial authority over an accused individual in a manner that is likely to result in either:

(1) the deliberate exposure of a person in custody for he purpose of photographing or televising by representatives of the news media, or

(2) the interviewing by representatives of the news media of a person in custody except upon request or consent by that person to an interview after being informed adequately of the right to consult with counsel and of the right to refuse to grant an interview.

(c) Nothing in this standard is intended to preclude any law enforcement officer or agency from replying to charges of misconduct that are publicly made against him or her or from participating in any legislative, administrative, or investigative hearing, nor is this standard intended to supersede more restrictive rules governing the release of information concerning juvenile offenders.

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Standard 8- 2.2 Disclosures by court personnel

Court personnel should not disclose to any unauthorized person information relating to a pending criminal case that is not part of the public records of the court and that may be prejudicial to the right of the prosecution or the defense to a fair trial, particularly with reference to information covered by a closure order issued pursuant to Standard 3.2.

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Standard 8- 2.3 Conduct of judges

Judges should refrain from any conduct or the making of any statements that may be prejudicial to the right of the prosecution or of the defense to a fair trial.

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PART III.

CONDUCT OF JUDICIAL PROCEEDINGS IN CRIMINAL CASES

Standard 8- 3.1 Prohibition of direct restraints on media

Absent a clear and present danger to the fairness of a trial or other compelling interest, no rule of court or judicial order should be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case.

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Standard 8- 3.2 Public access to judicial proceedings and related documents and exhibits

(a) In any criminal case, all judicial proceedings and related documents and exhibits, and any record made thereof, not otherwise required to remain confidential, should be accessible to the public, except as provided in section (b).

(b)  (1) A court may issue a closure order to deny access to the public to specified portions of a judicial proceeding or related document or exhibit only after reasonable notice of and an opportunity to be heard on such proposed order has been provided to the parties and the public and the court thereafter enters findings that:

(A) unrestricted access would pose a substantial probability of harm to the fairness of the trial or other overriding interest which substantially outweighs the defendant's right to a public trial;

(B) the proposed order will effectively prevent the aforesaid harm; and

(C) there is no less restrictive alternative reasonably available to prevent the aforesaid harm.

      (2) A proceeding to determine whether a closure order should issue may itself be closed only upon a prima facie showing of the findings required by Section b(1). In making the determination as to whether such a prima facie showing exists, the court should not require public disclosure of or access to the matter which is the subject of the closure proceeding itself and the court should accept submissions under seal, in camera or in any other manner designed to permit a party to make a prima facie showing without public disclosure of said matter.

(c) While a court may impose reasonable time, place and manner limitations on public access, such limitations should not operate as the functional equivalent of a closure order.

(d) For purposes of this Standard, the following definitions shall apply:

(1) "criminal case" shall include the period beginning with the filing of an accusatory instrument against an accused and all appellate and collateral proceedings;

(2) "judicial proceeding" shall include all legal events that involve the exercise of judicial authority and materially affect the substantive or procedural interests of the parties, including courtroom proceedings, applications, motions, plea-acceptances, correspondence, arguments, hearings, trial and similar matters, but shall not include bench conferences or conferences on matters customarily conducted in chambers;

(3) "related documents and exhibits" shall include all writings, reports and objects, to which both sides have access, relevant to any judicial proceeding in the case which are made a matter of record in the proceeding;

(4) "public" shall include private individuals as well as representatives of the news media;

(5) "access" shall mean the most direct and immediate opportunity as is reasonably available to observe and examine for purposes of gathering and disseminating information;

(6) "closure order" shall mean any judicial order which denies public access.

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Standard 8- 3.3 Change of venue or continuance

   The following standards govern the consideration and disposition of a motion in a criminal case for change of venue or continuance based on a claim of threatened interference with the right to a fair trial:

   (a) Except as federal or state constitutional or statutory provisions otherwise require, a change of venue or continuance may be granted on motion of either the prosecution or the defense.

   (b) A motion for change of venue or continuance should be granted whenever it is determined that, because of the dissemination of potentially prejudicial material, there is a substantial likelihood that, in the absence of such relief, a fair trial by an impartial jury cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court's own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.

   (c) If a motion for change of venue or continuance is made prior to the impaneling of the jury, the court may defer ruling until the completion of voir dire. The fact that a jury satisfying prevailing standards of acceptability has been selected shall not be controlling if the record shows that the criterion for the granting of relief set forth in paragraph (b) has been met.

   (d) It should not be a ground for denial of a change of venue that one such change has already been granted. The claim that the venue should have been changed or a continuance granted should not be considered to have been waived by the subsequent waiver of the right to trial by jury or by the failure to exercise all available peremptory challenges.

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Standard 8- 3.4 Severance

   In cases in which there is a substantial likelihood that one or more of the defendants will not receive a fair trial because of potentially prejudicial publicity against another defendant, the court should grant severance on motion of either the prosecution or the defense.

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Standard 8- 3.5 Selecting the jury

   The following standards govern the selection of a jury in those criminal cases in which questions of possible prejudice are raised:

   (a) If there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure should take place outside the presence of other chosen and prospective jurors. An accurate record of this examination should be kept by a court reporter or tape recording whenever possible. The questioning should be conducted for the purpose of determining what the prospective juror has read and heard about the case and how any exposure has affected that person's attitude toward the trial, not to convince the prospective juror that an inability to case aside any preconceptions would be a dereliction of duty.

   (b) Whenever prospective jurors have been exposed to potentially prejudicial material, the court should consider not only the jurors' subjective self-evaluation of their ability to remain impartial but also the objective nature of the material and the degree of exposure. The court should exercise extreme caution in qualifying a prospective juror who has either been exposed to highly prejudicial material or retained a recollection of any prejudicial material.

   (c) Whenever there is a substantial likelihood that, due to pretrial publicity, the regularly allotted number of peremptory challenges is inadequate, the court should permit additional challenges to the extent necessary for the impaneling of an impartial jury.

   (d) Whenever it is determined that potentially prejudicial news coverage of a criminal matter has been intense and has been concentrated in a given locality in a state (or federal district), the court should, in jurisdictions where permissible, consider drawing jurors from other localities in that state (or district).

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Standard 8- 3.6 Conduct of the trial

   The following standards govern the conduct of a criminal trial when problems relating to the dissemination of potentially prejudicial materials are raised:

   (a) Whenever appropriate, in view of the notoriety of a case or the number or conduct of news media representatives present at any judicial proceeding, the court should ensure the preservation of decorum by instructing those representatives and others as to the permissible use of the courtroom and other facilities of the court, the assignment of seats to news media representatives on an equitable basis, and other matters that may affect the conduct of the proceeding.

   (b) Sequestration of the jury should be ordered if it is determined that the case is of such notoriety or the issues are of such a nature that, in the absence of sequestration, there is a substantial likelihood that highly prejudicial matters will come to the attention of the jurors. Either party may move for sequestration of the jury at the beginning of the trial or at any time during the course of the trial, and, in appropriate circumstances, the court may order sequestration on its own motion. Whenever sequestration is ordered, the court, in advising the jury of the decision, should not disclose which party requested it. As an alternative to sequestration in cases where there is a significant threat of juror intimidation during or after the trial, the court may consider an order withholding public disclosure of jurors' names and addresses as long as that information is not otherwise required by law to be a matter of public record.

   (c) Whenever appropriate, in light of the issues in the case or the notoriety of the case, he court should instruct jurors and court personnel not to make extrajudicial statements relating to the case or the issues in the case for dissemination by any means of public communication during the course of the trial and should caution parties and witnesses concerning the dangers of making an extrajudicial statement during trial. The court may also order sequestration of witnesses, prior to their appearance, when it appears likely that in the absence of sequestration they will be exposed to extrajudicial reports that may influence their testimony.

   (d) In any case that appears likely to be of significant public interest, an admonition in substantially the following form should be given before the end of the first day if the jury is not sequestered:

   During the time you serve on this jury, there may appear in the newspapers or on radio or television reports concerning this case, and you may be tempted to read, listen to, or watch them. Please do not do so. Due process of law requires that the evidence to be considered by you in reaching your verdict meet certain standards; for example, a witness may testify about events personally seen or heard but not about matters told to the witness by others. Also, witnesses must be sworn to tell the truth and must be subject to cross-examination. News reports about the case are not subject to these standards, an if you read, listen to, or watch these reports, you may be exposed to information which unduly favors one side and to which the other side is unable to respond. In fairness to both sides, therefore, it is essential that you comply with this instruction.

   If the process of selecting a jury is a lengthy one, such an admonition should also be given to each juror as he or she is selected. At the end of each day of the trial, and at other recess periods if the court deems necessary, an admonition in substantially the following form should be given:

   For the reasons stated earlier in the trial, I must remind you not to read, listen to, or watch any news reports concerning this case while you are serving on this jury.

   (e) If it is determined that material disseminated during the trial goes beyond the record on which the case is to be submitted to the jury and raises serious questions of possible prejudice, the court may on its own motion or should on the motion of either party question each juror, out of the presence of the others, about exposure to that material. The examination should take place in the presence of counsel, and an accurate record of the examination should be kept. The standard for excusing a juror who is challenged on the basis of such exposure should be the same as the standard of acceptability recommended in standard 8-3.5(b), except that a juror who has seen or heard reports of potentially prejudicial should be excused if reference to the material in question at the trial itself would have required a mistrial to be declared.

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Standard 8- 3.7 Setting aside the verdict

   On motion of the defendant, a verdict of guilty in any criminal case shall be set aside and a new trial granted whenever, on the basis of competent evidence, the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury. Nothing in this recommendation is intended to affect the rules or procedures in any jurisdiction concerning the impeachment of jury verdicts.

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Standard 8- 3.8 Broadcasting, televising, recording and photographing courtroom proceedings

   A judge should prohibit broadcasting, televising, recording, or photographing in courtrooms and areas immediately adjacent thereto during sessions of court, or recesses between sessions, except that under rules prescribed by a supervising appellate court or other appropriate authority, a judge may authorize broadcasting, televising, recording and photographing of judicial proceedings in courtrooms and areas immediately adjacent thereto consistent with the right to a fair trial and subject to express conditions, limitations, and guidelines which allow such coverage in a manner that will be unobtrusive, will not distract or otherwise adversely affect witnesses or other trial participants, and will not otherwise interfere with the administration of justice.

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