Random Thoughts (Some of Them Obvious) for Criminal Defense Attorneys Dealing With the Press in High Profile Cases

1. Rule 3.6 Maryland Rules of Professional Conduct

a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be a 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. ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates 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 of 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 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 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) Notwithstanding paragraph a) and b) (1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:

(1) The general nature of the claim or defense;

(2) The information contained in a public record;

(3) That an investigation of the matter is in progress, including the general scope of the investigation, 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.

2. Is it in your client's interest to be in the press and do you have any power to limit or preclude the press exposure it if it is not?

Resist your urge for personal coverage and/or recognition unless you can truly say that it is in your client's interest to communicate with the media. Nothing requires you to say more than no comment. You may decide it is not in your interest even to return phone calls requesting comments.

a. Remember that if your client is a professional (e.g., lawyer or doctor), a business person, or a business entity, the press coverage can be disastrous to your clients reputation, license and/or business concerns even if you are later able to successfully resolve the matter before or after a trial. Because of these concerns you may need to be agile in your pre-charging strategies in order to attempt to avoid criminal charges and/or press coverage.

b. Is there a private civil settlement or some other way that will avoid news coverage?

c. In white collar cases you can often negotiate with prosecutors to keep them from issuing a press statement during the investigation phase and sometimes even after charges are filed or a disposition is reached.

d. If your client is going to or is currently being prosecuted, at what stage of the case should you consider providing information to the press?

3. Is your client's position sympathetic? If so, is there an advantage to getting your side out in the media consistent with Rule 3.6 of the Maryland Rules of Professional Conduct?

a. What are some of the disadvantages of providing information to the press?

1) Are you taking a position too early in a case that you may later need to retract or modify?

2) Are you educating the investigating agents or the prosecutors as to all or part of your defense?

3) Will you unnecessarily incite the agents or prosecutors?

4) Will you alienate the Judge?

5) Will the press conduct an investigation that undermines your defense or the credibility of your client?

b. What are some of the advantages of providing information to the press?

1) You may intimidate the opposition in the right to case. But see Rule 3.6(a) of the Maryland Rules of Professional Conduct.

2) Will you be able, in a rare case, to give the prosecutor political cover to help decline to prosecute or to resolve the case in a way more favorable to your client?

3) Will you be able, in a rare case, to smoke out helpful witnesses that you may not know about?

4) Will you help client relations by being proactive and not passive if your client is getting excoriated in the press? (Be careful about not falling victim to your clients sense of outrage or feelings that you are not being aggressive if taking to the press is otherwise not a good idea).

5) Will you positively influence the jury pool or the court in advance of trial?

c. Should your client speak? (Almost never)

d. Is your client's side persuasive?

e. In a rare case, should you show the press tangible or documentary evidence that helps your cause? See Rule 3.6(b)(6) of the Maryland Rules of Professional Conduct.

f. Will you be able to persuade the reporter to cover your client's case in a more sympathetic way?

4. If your story has local interest, which reporter(s) is likely to cover the story (newspaper, television, radio) if your client's case becomes public?

a. Is it someone who is solely prosecution oriented?

b. Is it someone who will print your client's side of the story if you determine that your client's side should be told?

c. Will the reporter attempt to undermine your version either by investigating what you say, quoting you out of context, or writing the story in a way that belittles your client's position?

d. Should you or your client provide information on a web site either as the sole method for getting your story out or in conjunction with traditional media?

5. Dealing with television and radio

a. Should you decline to speak? Do you have a choice?

b. Where should you talk to the press if you choose to do so?

c. Should your client be with you?

d. Should your client say anything?

e. Is it better for someone else to speak rather than the attorney or client?

f. How does your client appear?

g. Should anyone else be with your client (e.g., family, supporters)?

h. Remember when you are on camera to sit up straight and lean forward slightly (having a small pillow in or chair forces you to have good posture).

i. Speak in short sentences if possible. Try to make every response a good sound bite. The interview my last several minutes but the part that will air will likely be much shorter, and you probably will have little say in which part(s) a television station will air.

j. Try to imagine the questions before they are asked and prepare short positive soundbite responses.

k. Television reporters like analogies and interesting catchy phrases. Are there some that are appropriate and helpful to your cause? (Remember If it doesn't fit you must acquit.)

l. Should you hold press conferences in the right case?

m. Should you agree to exclusive stories with one network?

6. When dealing with newspaper reporters it is almost always better to fax or e-mail quotes rather than to give them orally. Be in control!!!

a. If you send quotes electronically they are less likely to misquote you.

b. By giving the quotes in writing you can control the world of material which reporters or editors can quote.

c. Write every sentence so that you are comfortable that each sentence standing alone could be quoted.

d. Resist reporters urgings to provide a quote immediately while still being responsive to providing the quote before press time. General rule reporters are happy that you are talking to them and will wait if they believe that you will come through with what you promise.

7. Speaking to the reporter off record

a. Should you do so?

b. Will the reporter honor off the record?

c. Are you and the reporter clearly in agreement as to what is on and off the record?

1) You may wish to reach an agreement that everything you say is off the record unless you specifically agree that you are on the record and what you say is ok for attribution.

d. What information should you give?

e. Will the information be disclosed?

f. Are you talking too much remember, reporters want you to talk too much and it is easy to do so.

g. Will it be obvious that you are the source of the information when you do not want to be?

8. Responding to misuse of the press by prosecutors or investigating agencies (prosecutor)

a. Has the prosecutor violated Rule 3.6 or any court orders (Rule 3.6) relevant to press coverage.

b. If there is a violation of Rule 3.6 how significant is it?

c. Does the prosecutor have a history of misusing the press?

d. Should you speak to the prosecutor early onto a void press misuse and/or to establish a record for later seeking judicial intervention or a more extension voir dire?

e. Should you seek a protective order or sanctions?

f. Consider whether you may have also violated Rule 3.6 order before you seek judicial intervention?

g. Should you consider your own press offensive in the prosecution violates Rule 3.3?