Written by R. Peter Decato, Esquire
A little more than 20 years ago, I was involved in a case that had a great deal of pre-trial publicity. The case involved a French-Canadian truck driver who got involved in an accident that claimed the lives of two New Hampshire State Troopers and a prisoner they were transporting to jail. Every day, either our local paper or the Union Leader would have something to say about the case. The Canadian press was covering it too. The case got even more notoriety when some bail issues in the case were discussed on the floor of the Canadian Parliament.
There are empirical studies about pre-trial publicity. Many of them indicate that "for the most part juries are able and willing to put aside extraneous information and base their decisions on the evidence." Courts, of course, are at liberty to issue “gag orders.” These orders limit or prohibit commentary on a case by those charged with prosecuting or defending. The whole idea is to avoid “prejudicing” or “tainting” the jury pool. The goal is to be able to pick a jury as fair “as the lot of humanity would permit.”
New Hampshire has adopted Professional Rules of Conduct. These Rules govern how attorneys “use the press.” One of the rules states that “(A) lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an 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.” If, for example, I tell the press that the State’s main witness is a child molester, that statement might have the effect of tainting the jury pool and it might “materially prejudice” the adjudicative proceeding. You can’t make these kinds of statements.
I maintain that these rules are frequently violated and little or nothing is done about it. This is likely because no one complains to the Professional Conduct Committee. Let me give you some examples. Recently, I heard or read the news where a lawyer was being interviewed. The lawyer said that the defendant had blown a 0.26 BAC (blood alcohol content). I thought about the Professional Rules of Conduct. Isn’t this a commentary about the performance or results of a test? How or why is this appropriate to mention the result?
There doesn’t seem to be a week that goes by when I can’t find or hear a statement where a lawyer is “vouching” for his/her client. This occurs when a lawyer gives an opinion that their client is not guilty or when a prosecutor states that the defendant is guilty.
A lawyer can lawfully comment on the claim, offense or defense involved. You can identify who the people are that are involved. You can inform the public that an investigation of a matter is in progress and you can let people know about the schedule in the case. You can ask the public to come forward with evidence and information and you can do other things to warn the public when there is known danger. For the most part, however, you have to be careful what you say as you can easily run afoul of the Professional Conduct Rules.
All the above being said, sometimes you don’t have a choice but to speak up. When your opponent is in the press beating you and/or your client down, you sometimes have to enter the fray. The whole effort is to make sure the jury pool is not prejudiced and that you can ultimately get a fair trial.
A little more than 20 years ago, I was involved in a case that had a great deal of pre-trial publicity. The case involved a French-Canadian truck driver who got involved in an accident that claimed the lives of two New Hampshire State Troopers and a prisoner they were transporting to jail. Every day, either our local paper or the Union Leader would have something to say about the case. The Canadian press was covering it too. The case got even more notoriety when some bail issues in the case were discussed on the floor of the Canadian Parliament.
There are empirical studies about pre-trial publicity. Many of them indicate that "for the most part juries are able and willing to put aside extraneous information and base their decisions on the evidence." Courts, of course, are at liberty to issue “gag orders.” These orders limit or prohibit commentary on a case by those charged with prosecuting or defending. The whole idea is to avoid “prejudicing” or “tainting” the jury pool. The goal is to be able to pick a jury as fair “as the lot of humanity would permit.”
New Hampshire has adopted Professional Rules of Conduct. These Rules govern how attorneys “use the press.” One of the rules states that “(A) lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an 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.” If, for example, I tell the press that the State’s main witness is a child molester, that statement might have the effect of tainting the jury pool and it might “materially prejudice” the adjudicative proceeding. You can’t make these kinds of statements.
I maintain that these rules are frequently violated and little or nothing is done about it. This is likely because no one complains to the Professional Conduct Committee. Let me give you some examples. Recently, I heard or read the news where a lawyer was being interviewed. The lawyer said that the defendant had blown a 0.26 BAC (blood alcohol content). I thought about the Professional Rules of Conduct. Isn’t this a commentary about the performance or results of a test? How or why is this appropriate to mention the result?
There doesn’t seem to be a week that goes by when I can’t find or hear a statement where a lawyer is “vouching” for his/her client. This occurs when a lawyer gives an opinion that their client is not guilty or when a prosecutor states that the defendant is guilty.
A lawyer can lawfully comment on the claim, offense or defense involved. You can identify who the people are that are involved. You can inform the public that an investigation of a matter is in progress and you can let people know about the schedule in the case. You can ask the public to come forward with evidence and information and you can do other things to warn the public when there is known danger. For the most part, however, you have to be careful what you say as you can easily run afoul of the Professional Conduct Rules.
All the above being said, sometimes you don’t have a choice but to speak up. When your opponent is in the press beating you and/or your client down, you sometimes have to enter the fray. The whole effort is to make sure the jury pool is not prejudiced and that you can ultimately get a fair trial.
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