Under our criminal justice system, it is the responsibility of the Prosecuting Attorney to not only insure that the guilty are convicted, but that the innocent go free. The Prosecutor is not just an advocate, but has a duty to assist in preserving the constitutional rights of the accused, including the right to a fair and unbiased jury.
The Indiana Code of Professional Responsibility, Rule 3.6, prohibits a Prosecutor from making a media statement that has a substantial likelihood of materially prejudicing a jury or jury panel.
It is rebuttably presumed that statements containing the following information will create such prejudice: the character or criminal record of a suspect, admissions by a suspect, the expected testimony of a witness, the possibility of a guilty plea, any examination or tests, any physical evidence, or any opinion of a suspect's guilt.
The Prosecutor may reveal to the media information contained in a public record, and a brief statement of the prosecution.
Rule 3.8 of the Indiana Code of Professional Responsibility further makes it the responsibility of the Prosecutor to exercise reasonable care to prevent investigators and law enforcement from making media statements that the prosecutor would be prohibited from making under Rule 3.6.
As Prosecuting Attorney, I strongly suggest that all law enforcement officers refrain from making any media statements in violation of Rule 3.6(b)(1)-(6). Such statements not only may infringe upon the rights of a suspect by prejudicing a jury against him, but may also greatly increase the chances of the trial being moved to another county, adding substantial costs to the prosecution.
The full text of Rule 3.6 and Rule 3.8(e) of the Indiana Code of Professional Responsibility reads as follows:
Rule 3.6. Trial Publicity
(a) A lawyer shall not make an extra judicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
(b) A statement referred to in paragraph (a) will be rebuttably presumed to have a substantial likelihood of materially prejudicing an adjudicative proceeding when it refers to that proceeding and the statement is related to:
(1) 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;
(2) 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;
(3) 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;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or
(6) 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.
(c) A lawyer involved in the investigation or litigation of a matter may state:
(1) a brief description of the legal claim or legal defense;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) 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
(7) in a criminal case:
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
Rule 3.8(e). Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall:
(e) 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 3.6.