CRIMINAL JUSTICE: The Ethics of Talking to the Media

Vol. 31 No. 4

By

Peter A. Joy is the Henry Hitchcock Professor of Law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio.

A lawyer attempting to advance a client’s position must work within ethical constraints when speaking with and using the media. Before answering a reporter’s questions, calling a press conference, or having other dealings with the media, a lawyer should know the ethical boundaries as well as the potential risks and benefits to the client.

Potential benefits and risks. Engagement by the lawyer or the client with the media may produce a number of potential benefits. One is reducing damage to the client’s personal and professional reputation. Being charged with, or even investigated for, criminal activity can have a devastating impact on a client’s reputation, even if the client is ultimately acquitted. For this reason, a client may believe that the best defense is to go on the offense—at least when it comes to how the media portrays the client.

Our criminal justice system presumes innocence, but human beings rarely do. Many reason that someone being investigated for or charged with a crime is probably guilty. Such an inference is especially likely if the person charged makes no public denial of guilt. A client’s silence in the face of accusation or even suspicion of a crime is likely to be viewed as a tacit admission of guilt.

Engagement with the media through a press conference or a media campaign might produce a number of other rewards directly connected to the outcome of the case. If it succeeds in generating public sympathy for the client during an investigation, it might help convince a prosecutor not to seek a charge, grand jurors not to indict, or a preliminary hearing judge not to bind the client over for trial.

If the client is charged, publicity might produce post-charge benefits as well. The publicity and public reaction to it, such as public skepticism about the factual or legal basis of, or the motivation behind, the prosecution, might influence the prosecutor to be more generous in guilty plea negotiations. Also, such publicity and any public sympathy it generates might influence the trial judge to be more favorable to the client in rulings made prior to, during, and after the trial, as well as more lenient at sentencing.

Despite the potential benefits, there are also risks to engaging with the media. One risk is that a press conference or media campaign might generate negative rather than positive reactions to the client. In addition, public statements by a client might reveal confidential information and tip off the prosecutor to the defense’s trial strategy.

Public statements aimed at influencing an ongoing investigation or upcoming trial may be made prior to the client and defense counsel being fully informed on the strengths and weaknesses of the prosecution’s case. If the case is still in the investigative stage, even the general contours of the potential charges may be unclear. The defense’s own investigative efforts may be far from complete. A press conference or media campaign that addresses the factual and legal dimensions of prospective or pending charges thus may require client and counsel to take strategic positions based on imperfect information. Take, for example, a decision about whether to rely in an opening statement on self-defense in a homicide case. Defense counsel might seek to mitigate the dilemma of choosing a strategic position based on imperfect information by delaying the defense opening statement until after the prosecution witnesses have testified and been cross-examined. An early media campaign, by contrast, does just the opposite. It exacerbates this dilemma for the defense by pressuring counsel and client to commit to a strategic position much earlier than the start of the trial.

Statements based on imperfect information made by a client may prove helpful to the prosecution in several ways. First, a statement might concede a factual issue the prosecution might have difficulty proving without the statement. For example, a media campaign aimed at establishing that a client acted justifiably in self-defense in shooting someone might include a statement conceding that the client was the shooter when the government might have difficulty proving that point. Such a statement by a client qualifies as a personal admission under the law of hearsay.

Statements that do not concede any factual issues the prosecution seeks to prove may be useful to the prosecution in other ways. If a client says something in a press conference or media interview that turns out to be false, the statement can later be introduced as a false exculpatory statement showing consciousness of guilt, even if the client never testifies and the defense concedes the truth at trial.

Another risk arises if defense counsel makes statements during a press conference or media campaign. Such statements qualify as authorized admissions under the hearsay rule. If such a statement is sought to be introduced at trial by the prosecution as an authorized admission, the prosecution might also seek to have defense counsel disqualified under the advocate witness rule.

Current Model Rule 3.6. Of the ethics rules that bear on a lawyer’s interactions with the media, none is more significant than ABA Model Rule (MR) 3.6 and its state counterparts. A quick look at the architecture of the rule reveals four components: (1) the rule, (2) a list of illustrations, (3) an exception, and (4) a provision extending the rule to all lawyers associated in a firm or office.

MR 3.6(a) is the foundational rule and prohibits a lawyer who is participating or has participated in the investigation or litigation of a matter from making any extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

MR 3.6(b) gives a list of typically permitted statements—ones that will not ordinarily violate Section (a). Comment [5] sets out a list of impermissible topics.

MR 3.6(c) creates what may be called its “fair reply” exception, the only exception found in MR 3.6. It allows a lawyer to reply to negative publicity about a client. The exception does not limit a lawyer to responding to publicity generated by an opposing lawyer or client. Negative publicity from a third party, such as a newspaper or television news, can trigger the exception. There are two important limitations on this right of fair reply. The first is a sort of contributory fault or “unclean hands” component, which states that neither the lawyer nor the client can have initiated the publicity. The second is that the responsive statement should contain only information necessary to mitigate undue prejudice created by the statements others made.

MR 3.6(d) addresses application of the rule to lawyers in a firm or government agency who are not personally involved in a case. Section (d) eliminates the possibility that a lawyer can evade MR 3.6’s restrictions by having another lawyer in his or her office make public statements prohibited by Section (a).

MR 3.6’s obligations apply to prosecutors just as they do to criminal defense lawyers and civil litigators. MR 3.8(f) also imposes responsibilities on a prosecutor regarding publicity. This provision has two focal points: statements that could increase public condemnation and the exercise of reasonable care to control public statements by others working with the prosecutor.

MR 3.6 also presents interpretative challenges. One is the task of assessing under MR 3.6(a) whether a particular statement will have a substantial likelihood of creating material prejudice. Another is whether under MR 3.6(c) a lawyer’s public reply to a prior public statement is required to protect a client from substantial undue prejudice.

ABA Criminal Justice Section

This article is an abridged and edited version of one that originally appeared on page 17 of Criminal Justice, Winter 2014 (28:4).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/crimjust

PERIODICALS: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; Academics Committee Newsletter, two times per year (electronic); White Collar Crime Newsletter, two times per year (electronic).

BOOKS AND OTHER RECENT PUBLICATIONS: Trial Tactics; Street Legal; The Citizenship Flowchart; The State of Criminal Justice; Leapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; The Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law; The Shadow of Justice (fiction).

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