The right to a fair trial and freedom of the press are both important rights guaranteed by the U.S. Constitution. The 6th Amendment of the US Constitution guarantees criminal defendants the right to receive a fair trial:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Additionally, the 1st Amendment of U.S. Constitution affords citizens the right to freedom of the press:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
However, sometimes these two constitutional rights come into direct conflict when pretrial publicity of a criminal case has the potential to deprive a defendant, the victim, and the public the right of a fair and impartial trial. As officers of the courts, we as prosecutors are legally and ethically required to abide by the rules of the Missouri Supreme Court and the laws of the State of Missouri with regards to pretrial publicity.
At times it can be frustrating to both the media and the public that we cannot discuss specific facts and details surrounding criminal cases that are pending or under investigation. However, we are required to follow the rules and may be limited in the amount of information we can provide. Please understand that these rules that have been implemented to preserve a defendant and victims the right to a fair and public trial.
Below are two rules from the Missouri Supreme Court on what information can be legally and ethically shared with the media and public. As both prosecutors and lawyers, we are required to follow these rules when handling media inquiries:
RULES OF PROFESSIONAL CONDUCT, MISSOURI BAR AND JUDICIARY
4-3.6. Trial Publicity
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.
Notwithstanding Rule 4-3.6(a), a lawyer may state:
- the claim, offense, or defense involved, and, except when prohibited by law, the identity of the persons involved;
- information contained in a public record;
- that an investigation of a matter is in progress;
- the scheduling or result of any step in litigation;
- a request for assistance in obtaining evidence and information necessary thereto;
- 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; and
- in a criminal case, in addition to Rule 4-3.6(b)(1) to (b)(6):
- the identity, residence, occupation, and family status of the accused;
- if the accused has not been apprehended, information necessary to aid in apprehension of that person;
- the fact, time, and place of arrest; and iv. the identity of investigating and arresting officers or agencies and the length of the investigation.
Notwithstanding Rule 4-3.6(a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this Rule 4-3.6(c) shall be limited to such information as is necessary to mitigate the recent adverse publicity.
No lawyer associated in a firm or government agency with a lawyer subject to Rule 4-3.6(a) shall make a statement prohibited by Rule 4-3.6(a).
The comment to Supreme Court Rule 4-3.6 provides that the following “subjects that are more likely than not to have a material prejudicial effect on a proceeding:
- the character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation, or witness, or the identity of a witness, or the expected testimony of a party or witness;
- in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement;
- the performance or results of any examination or test, or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
- any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
- information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial; or
- the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
4-3.8. Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
- the information sought is not protected from disclosure by any applicable privilege;
- the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
- there is no other feasible alternative to obtain the information;
- except for 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, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused, and exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 4-3. 6 or this Rule 4-3.8.