Prosecutorial Soundbites: When Do They Cross the Line?

45 Pages Posted: 2 Dec 2009  

Laurie L. Levenson

Loyola Law School Los Angeles

Date Written: November 23, 2009

Abstract

Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas. It identifies topics that are most likely to pose the greatest ethical problems for prosecutors. These topics relate directly to practices and evidentiary problems that have long led to wrongful convictions. In particular, this article focuses on why prosecutors should generally refrain from discussing a defendant’s character and race, confessions and admissions, scientific tests and DNA testing, and eyewitness identifications and witness credibility. It also discusses why prosecutors should depersonalize their involvement in cases and refrain from offering personal opinions regarding a defendant or the case. Finally, the article suggests that prosecutors should look to other professions’ ethical codes, including those of journalists, to set aspirational standards that will help guide prosecutors’ extrajudicial remarks.

Suggested Citation

Levenson, Laurie L., Prosecutorial Soundbites: When Do They Cross the Line? (November 23, 2009). Georgia Law Review, Forthcoming; Loyola-LA Legal Studies Paper No. 2009-46. Available at SSRN: https://ssrn.com/abstract=1511839

Laurie L. Levenson (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
(213) 736-1149 (Phone)
(213) 380-3769 (Fax)

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