United States: Publicity: The US Perspective

Last Updated: March 21 2018
Article by Jodi L. Avergun and Bret A. Campbell

Most Read Contributor in United States, August 2018

Jodi Avergun and Bret Campbell1

Restrictions in a criminal investigation or trial

Generally

The US Constitution guarantees defendants in criminal cases the right to a speedy and public trial. It also guarantees all Americans freedom of speech and freedom of the press. In the trial setting, these constitutional rights are sometimes in conflict. For instance, although freedom of the press is guaranteed, media reports about a case might taint the pool of potential jurors, or might allow sworn jurors to learn about matters not in evidence. Accordingly, lawyers practising in the United States must be aware of the multiple, conflicting rights that affect judicial proceedings. These rights include the public's right of access to trial proceedings;2 the media's right to report what occurs in court;3 the litigants' freedom of speech;4 and the defendant's right to a fair trial.5 No one right is absolute, and each is limited by various rules and regulations.6

A lawyer's ethical obligations, for example, may limit the attorney's First Amendment right to speak publicly about a case. Under the American Bar Association Model Rules of Professional Conduct, which have been adopted, in whole or in part, by the vast majority of US jurisdictions, a lawyer who has or is participating in a matter must not make an 'extrajudicial statement' that 'will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.'7 In federal criminal cases, prosecutors must also comply with these rules, as well as those published in the US Attorneys' Manual, which limits the information a prosecutor may disclose or the issues he or she may comment on.8

Apart from the rules prohibiting a lawyer from publicly commenting on a pending case, a lawyer's professional duty to keep client matters confidential may also prevent him or her from publicising information about a case.9

Investigatory and pretrial stage

During the investigative stage of the case, before charges have been filed, a court cannot limit an individual involved in an investigation from making public statements about the case. But because such statements can be used by a prosecutor against a defendant in a subsequent criminal proceeding (either as substantive evidence or to demonstrate that the individual waived his or her right to remain silent), lawyers often counsel their clients to exercise their free speech rights carefully, if at all. Prosecutors are more constrained, however. The US Attorneys' Manual provides that a prosecutor cannot make public statements about a case if there is substantial likelihood that the statement will materially prejudice an adjudicative proceeding.10 Similarly, prosecutors, but not individual witnesses, are prohibited from disclosing any matters that occur before a grand jury.11 Once charges have been filed, however, courts have greater ability to insulate their proceedings from the prejudicial effects of any publicity.12 A judge's failure to exercise this power may, under certain circumstances, violate a defendant's right to a fair trial.13 In widely publicised cases, the local rules may authorise the court to issue orders governing extrajudicial statements by parties, witnesses and attorneys, and the seating and conduct of spectators, as well as the sequestration of jurors and witnesses.14 Sometimes, litigants can attempt to prevent the public disclosure of private or prejudicial information prior to trial by filing their documents under seal and pursuant to protective orders.15 However, because the First Amendment guarantees the public's right of access to governmental proceedings, sealed filings can only be made with the court's permission and upon a showing of necessity or that unfair prejudice might result from public dissemination. Accordingly, motions to seal proceedings are not lightly granted, and government lawyers in particular are severely limited in their ability to file motions under seal or to consent to their opponent's request to close proceedings.16 Rather than seal proceedings or files, courts must consider whether a change of venue, jury sequestration or gag orders, among other techniques, would adequately protect the rights of the parties. Upon a showing that pretrial publicity about the case will prevent the empanelment of an impartial jury or will otherwise prejudice the defendant, the defendant can move to have the case transferred to another district.17

Footnotes

1 Jodi Avergun is a partner at Cadwalader, Wickersham & Taft LLP. Bret Campbell, formerly a partner in Cadwalader's white-collar defence and investigations group, is a principal of Northstar Consulting LLC. The authors wish to acknowledge the contribution of Stephen Weiss, an associate in Cadwalader's Washington, DC, office to this chapter.

2 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-81 (1980) (holding that the right of the public and the press to attend criminal trials is guaranteed under the First and Fourteenth Amendments, and that, absent an overriding interest established after a factual hearing, the trial of a criminal case must be open to the public. In 1984, the US Supreme Court extended its ruling in Richmond Newspapers to jury selection. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986).

3 Estes v. State of Tex., 381 U.S. 532, 541–42 (1965) ('Reporters of all media, including television, are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media.').

4 Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074-75 (1991) (describing the bounds to which limitations may be placed on a lawyer's First Amendment right to free speech).

5 Press-Enter. Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 508 (1984) ('No right ranks higher than the right of the accused to a fair trial.').

6 See United States v. Gerena, 869 F.2d 82, 85 (2d Cir. 1989) ('The district court must balance the public's right of access against the privacy and fair trial interests of defendants, witnesses and third parties.'); United States v. Rajaratnam, 708 F. Supp. 2d 371, 374 (S.D.N.Y. 2010) (explaining that '[c]ourts must balance the right [to access criminal proceedings] against other important values, like the Sixth Amendment right of the accused to a fair trial').

7 Model Rules of Prof'l Conduct R. 3.6(a) (2016).

8 U.S. Attorneys' Manual, 1-7.000 (Media Relations), available at https://www.justice.gov/usam/ usam-1-7000-media-relations.

9 See, e.g., Sealed Party v. Sealed Party, No. 04-2229, 2006 U.S. Dist. LEXIS 28392 (S.D. Tex. 4 May 2006) (finding breach of fiduciary duty where attorney published a press release disclosing the terms of a confidential settlement).

10 U.S. Attorneys' Manual, Media Relations, §1-7.500, available at https://www.justice.gov/usam/ usam-1-7000-media-relations.

11 Rule 6(e)(2) prohibits a grand juror, interpreter, court reporter, operator of a recording device, person who transcribes recorded testimony, attorney for the government, or person to whom a proper disclosure is made under Rule 6(e)(3)(a)(ii) or (iii) from disclosing a matter occurring before the grand jury. Fed. R. Crim. P. 6(e). The rule does not impose any obligation of secrecy on witnesses.

12 See, e.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (holding that a court may enter a 'gag' order prohibiting the reporting of evidence adduced at an open preliminary hearing if it finds 'a clear and present danger that pre-trial publicity could impinge upon the defendant's right to a fair trial').

13 Sheppard v. Maxwell, 384 U.S. 333 (1966) (holding that failure of a state trial judge to protect the defendant in a murder prosecution 'from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom' deprived the defendant of a fair trial consistent with the Due Process Clause of the Fourteenth Amendment).

14 See, e.g., L. Cr. R 57.7(c): S.D.N.Y. L. Cr. R 23.1(h).

15 Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991) (noting that, in permitting a party to file a document under seal, should consider '(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced'); see also Strauss v. Credit Lyonnais, S.A., No. 06-CV-702, 2011 WL 4736359, at *4 (E.D.N.Y. 6 October 2011) (approving a protective order that governs the filing of documents under seal as well as the public filing of documents).

16 28 C.F.R. §50.9.

17 Fed. R. Crim. P. 21(a); see also Sheppard, 384 U.S. at 363 (requiring the defendant to show 'a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial').

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