Free Press/Fair Trial: Prosecutors & the Media

Lee Ann BarnhardtDirector of Education & Communication

ND Supreme Court

Free Press

Fair Trial

The court and officers of the court have a

duty to uphold the

Constitution.

“There is little justification for a running fight between the courts and the press on this question of fair trial and free press. Both are basic and sacred concepts in our system of government. All that is required to preserve both is for the press and the courts to place the emphasis on the Constitution instead of on themselves.”

– Florida Supreme Court, 1959

The Debate: Pro

The relationship between courts and the media is a critical component of the public’s understanding of the judicial branch and is directly connected to public trust and confidence in the judicial system.

The Debate: Con

Intense media scrutiny and access to media can result in biased juries.

Who is the Press?

• DVD 25 (1:39 min.)Tom Hodson on new media’s threats to both the judiciary and traditional journalism

Media Defined

Who is Seeking Information?

• At your table:– Which media is asking you for information?– How do they ask (in person, phone, email)?– Do you have a relationship with them?– Where are they located in relation to your county?– How do you know if they are in the courtroom?

Media Request for Information from Courts

• Court Employees Response

Court records

Access to hearings/trials

Judicial decisions

Cameras in the courtroom

Court process/procedure

Court statistics

Juror information

Legislation/statutes

Staffing

Court facilities

0% 10% 20% 30% 40% 50% 60% 70% 80%

Percentage of Employee Responses

What Does the Media Want to Know?

• At your table:– List what you are most frequently asked about by

the media.

What Do You Tell the Media?

• At your table:– List the restrictions you have on releasing

information either by rule or by practice– How do you respond to information posted

through “new” or social media?– How do handle statements being made in the

press by others that you feel would prejudice a jury?

ND Codes of Conduct

• Code of Judicial Conduct• Rules of Professional Conduct– Rule 3.6 Trial Publicity– Rule 3.8 Special Responsibilities of a Prosectutor

Appropriate Information

Rule 3.6- a lawyer may state • (1) the claim, offense, or defense involved and, except when

prohibited by law, the identity of the persons involved;• (2) information contained in a public record;• (3) that an investigation of a matter is in progress;• (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 there exists the likelihood of substantial harm to an individual or to the public interest; and

Criminal Cases

• (7) in a criminal case, in addition to subparagraphs (1) through (6): – (i) the identity, residence, occupation, and family

status of the accused; – (ii) if the accused has not been apprehended,

information necessary to aid in the 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.

Restrictions

Rule 3.8 (f) 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 3.6 or this Rule.

National Prosecution Standards

• Media Relations• Balancing Interests• Restraints• Public Response• Law Enforcement Policy on Information• Judicial Decisions

Court Rules: Media & Mobile Technology

N.D. AR Rule 21 – Electronic and Photographic Media Coverage of Court Proceedings

• Updated September 2014

Tips – High Profile Case

• Pull out your ethical guidelines on a regular basis.• Have only one spokesperson. Don’t let that person do any

grandstanding to the press.• Set up a special phone line for the media to tell them what’s

happening on the case in terms of procedure.• Have copies of key documents, such as the indictment,

available for the press as soon as they can be released.• Don’t be afraid to explain court procedures to the press. • Have a strategy. • Let the media know you’ll be available for comment at some

point.

To Consider

– What can you do to improve media relations in your area?

– Should more information be accessible online?– Do you have a strategy for monitoring media

coverage?– How can you limit juror access to information

during a trial?– Are new rules necessary? What would they be?