Week 5

Question 1

why is prosecuting/not prosecuting a public official so problematic?

Answer 1

not prosecuting looks like you’re giving them a pass

prosecuting them could look like it’s politically motivated

Question 2

when prosecuting a public official, what two things should a prosecutor ensure is happening?

Answer 2

1) ensure the same standard is being applied to everyone, regardless of party
2) have an air-tight case

Question 3

why is prosecuting/not prosecuting a police officer so problematic?

Answer 3

prosecutors and police departments work hand-in-hand

prosecuting them could damage that relationship

not prosecuting them looks like it’s playing favorites

Question 4

possible solutions to prosecuting a local police officer

Answer 4

state AG takes it OR

if implicating civil rights, federal prosecutor handles

Question 5

why is prosecuting a defense attorney so problematic?

Answer 5

don’t want it to appear vindictive, don’t want to chill effective representation

Question 6

what safeguards are there to protect privileged material when prosecuting an attorney?

Answer 6

taint teams used when searching attorney’s office

May need a subpoena to be issued if looking for information relating to representation

• show lack of privilege
• subpoena must be narrowly drawn
• need for info > potential adverse effects

“friendly” subpoena (I’lll give you info, but subpoena me first)

Question 7

what amendment is implicated by a prosecution of a journalist?

Answer 7

1st Amendment - freedom of the press

Question 8

what function cannot be impaired when arresting, charging, issuing subpoenas to news members?

Answer 8

news-gathering functions

Question 9

does a prosecutor need approval to arrest/interrogate someone for activity arising out of news-gathering activities?

Answer 9

Yes, must get AG approval

Question 10

does the Constitution state there is a testimonial privilege for journalists?

is there a qualified privilege?

Answer 10

No, the 1st Amendment does not contain a testimonial privilege for reporters (Branzburg)

• maybe there’s a qualified privilege. Concurrence suggested courts should balance the interests

Question 11

the fact-finder has a right to _________’s evidence

but reporters have a duty to keep their ________ confidential

Answer 11

every man’s

sources

Question 12

Why could a journalist’s privilege be problematic regarding government officials?

Answer 12

gives officials a clear incentive to gossip, smear others, lie

could prevent discovery illegal actions of government officials, if journalists couldn’t be compelled to disclose