Week 8 Flashcards
should a participating attorney make an extrajudicial statement that he knows/reasonably should know will be disseminated and have a substantial likelihood of materially prejudicing an adjudicative proceeding
Generally, no.
what types of adjudicative proceedings are most prone to being materially prejudiced by extrajudicial statements?
criminal proceedings, especially if by jury
may an attorney make a statement that responds to recent publicity (not caused by the attorney or his client)?
Yes, if a reasonable lawyer would believe it’s required to protect a client from that publicity.
Keep it limited in information; only what’s necessary to mitigate the recent adverse publicity
Notwithstanding the general bar, what information CAN be included in public statements?
(1) claim/offense /defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest
Notwithstanding the general bar, what information CAN be included in public statements as it pertains to a CRIMINAL TRIAL?
the normal 6 pieces of information PLUS
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
Should a prosecutor refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused?
Yes, he should refrain from doing so generally.
They are allowed to make 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
must a prosecutor ensure that persons associated with him also follow the rule re: extrajudicial statements?
YES
What two rights are at issue when a prosecutor makes extrajudicial statements?
Prosecutor - 1st amendment, free speech
Defendant - 6th amendment, right to a trial by an impartial jury
what unique role does a prosecutor have that may pressure him to make a public statement?
Prosecutors are public officials, act as a representative of their constituency
even if a prosecutor makes an ill-advised public statement, what must the defendant show?
must show that it actually reached the jury and actual prejudice
Explain the holding in Bowen
prosecutors’ online conduct was so “egregious,” “deliberate,” and “offensive” that it “infected” the “integrity of the proceeding,” thereby rendering it impossible to “cure such a grave appearance of unfairness” even if the jury was not aware of or influenced by the prosecutors’ statements.
Thus, no showing of actual prejudice was required.
