Prosecutors enjoy broad opportunities to communicate with the public outside the courtroom. Justice Holmes’s famous dictum -- “The theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print” – is just that – a “theory.” The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher “special” duty to serve justice rather than a private client. And public statements by prosecutors can do far more damage to the system of justice and persons accused of crimes than statements by defense lawyers. Prosecutors enjoy the limelight and media exposure, and to the personal and political the advantages they get from favorable publicity both to the cases they are prosecuting and to their own professional careers. Prosecutors engage in public commentary about their law enforcement activities, specific cases they are investigating and prosecuting, law enforcement policies and priorities that inform their work, and public alerts about safety. Prosecutor speech is ubiquitous, carefully orchestrated, and often hard-hitting. With the collaboration of the media, prosecutors hold press conferences and issue press releases, give briefings and interviews with reporters, post Internet and Twitter comments, appear as TV “experts,” speak in public forums, and write books about their exploits. They use the notorious “perp walk” as a form of communication, and leak confidential information.
As Justice Holmes intimated, a prosecutor’s public statements are potentially dangerous. Given a prosecutor’s high standing with the public as a “Champion of Justice” sworn to uphold the law and punish wrongdoers, a prosecutor possesses a unique ability to shape public opinion about fighting crime and specific individuals who may be under investigation and prosecution. And with the ability of the media to saturate the public with pervasive, repetitive, and inflammatory news coverage about a case, prosecutors are well aware that their public statements can prejudice future jurors in that case and thereby inflict prejudice to persons suspected or charged with wrongdoing. Indeed, a prosecutor’s public statements can destroy a person’s reputation, prejudice his right to a fair trial, and undermine the public’s respect for way the criminal law is administered. And most tragically, a prosecutor’s public statements can contribute to the conviction of innocent persons.
Bennett L. Gershman, The Prosecutor’s Duty of Silence, 79 Alb. L. Rev. 1183 (2016), http://digitalcommons.pace.edu/lawfaculty/1016/.