The Incautious Media, Free Speech, and the Unfair Trial: Why Prosecutors Need More Realistic Guidance in Dealing with the Press

The ABA has proposed a new Standard for the Prosecution Function, Standard 3-1.7, which addresses how prosecutors should communicate with the media. The core portion of that proposal prohibits a prosecutor from making a statement raising a substantial risk of materially prejudicing a criminal proceeding or of unnecessarily heightening public condemnation of the accused. But this proposal is unrealistic. Recent findings in cognitive science suggest that media information overload and its fast pace result in media coverage of high-profile trials that heightens audience’s negative emotions while compromising their critical faculties.

Audience members thus are enraged at accused offenders and ill-equipped to judge the accuracy and completeness of media crime stories. All media in such cases therefore raise the substantial risks that the proposal prohibits. On the other hand, prosecutors’ commentary to the press serves important free speech and political purposes, which this Article details. This Article weighs this balance to come up with an alternative series of guiding ethical principles, including, centrally, the principle that the prosecutor’s statements shall not aggravate the unavoidable risks posed to trial fairness.

The remaining principles detail how to give this nonaggravation rule greater specificity in channeling prosecutors’ ethical decisionmaking in communicating with the media.