Can a prosecutor publicly display drugs, weapons, or other contraband seized in a criminal investigation?

Plain-English summary

A prosecutor asked whether the public display of drugs, weapons, or other contraband seized during a criminal investigation is permitted. The Committee concluded that it is not: such displays are extrajudicial statements that violate RPC 3.6 (trial publicity) and RPC 3.8 (special responsibilities of a prosecutor).

The Committee traced a consistent New Jersey position, going back to at least the 1980s, that public display of seized evidence is an extrajudicial statement prohibited by RPC 3.6 and its predecessor disciplinary rule. It cited a 1989 Notice to the Bar and the companion cases In re Hinds and In re Rachmiel, where the New Jersey Supreme Court emphasized the public's interest in a fair criminal trial and the "extraordinary power" of prosecutors and defense lawyers to undermine the criminal justice system through out-of-court statements. The concern is that contraband may later be suppressed, so displaying it before trial circulates evidence that may never be admitted.

The prosecutor argued that the 2004 amendments to RPC 3.8 (in particular paragraph (f), which permits statements necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose) superseded that precedent, especially given the opioid crisis. The Committee rejected the argument. It read RPC 3.8(f) as a narrow exception that supplements, rather than negates, RPC 3.6, and held that "legitimate law enforcement purpose" covers only communications necessary to protect against or alert the community to a specific, current danger to public safety, like warning that an escaped defendant is armed and dangerous. Raising general public awareness of the drug epidemic does not qualify.

The Committee concluded that when New Jersey amended RPC 3.6 and 3.8 in 2004, there was no change to the preexisting law on prohibited extrajudicial statements, including public displays of drugs, weapons, or other contraband, and that such displays are not permitted.

In practice

The opinion holds that, under RPC 3.6 and RPC 3.8 as they stood at the time, a prosecutor may not publicly display seized drugs, weapons, or other contraband, and must exercise reasonable care to prevent police and related personnel from doing what the prosecutor cannot. Per the opinion, RPC 3.8(f)'s exception for statements serving a "legitimate law enforcement purpose" reaches only communications necessary to address a specific, current danger to public safety, not statements that merely heighten general awareness of criminal activity. The Committee read the 2004 amendments as leaving the long-standing prohibition intact.

Common questions

Q: Can a prosecutor hold a press event displaying seized drugs or weapons?

A: No. The Committee held that public displays of seized contraband are extrajudicial statements prohibited by RPC 3.6 and RPC 3.8.

Q: Did the 2004 amendments to RPC 3.8 loosen this rule?

A: No. The Committee held that the 2004 amendments did not change the preexisting prohibition; RPC 3.8(f) supplements RPC 3.6 rather than superseding it.

Q: Does RPC 3.8(f)'s "legitimate law enforcement purpose" exception cover raising awareness of the opioid crisis?

A: No. The Committee read that exception to cover only communications necessary to protect against or alert the community to a specific, current danger, such as warning that an escaped defendant is armed and dangerous.

Q: Can police display the contraband if the prosecutor cannot?

A: No. The opinion notes that under RPC 3.8(f) the prosecutor must exercise reasonable care to prevent police and associated personnel from making a statement the prosecutor is prohibited from making.

Background and rules framework

The opinion applies RPC 3.6 (trial publicity; a lawyer participating in a matter shall not make an extrajudicial statement with a substantial likelihood of materially prejudicing an adjudicative proceeding; cf. Model Rule 3.6) and RPC 3.8 (special responsibilities of a prosecutor, including paragraph (f) on extrajudicial statements that heighten public condemnation of the accused; cf. Model Rule 3.8). It draws on New Jersey Supreme Court precedent (In re Hinds; In re Rachmiel), the U.S. Supreme Court's decision in Gentile v. State Bar of Nevada, and the ABA Comments to Model Rules 3.6 and 3.8.

Citations and references

Rules of Professional Conduct:

• RPC 3.6 (trial publicity); cf. Model Rule 3.6
• RPC 3.8 and RPC 3.8(f) (special responsibilities of a prosecutor); cf. Model Rule 3.8

Regulations:

• 28 C.F.R. Section 50.2(b)(6)(v) and (a)(4) (DOJ guidance on describing items seized at arrest)

Cases:

• In re Hinds, 90 N.J. 604 (1982), public interest in a fair criminal trial
• In re Rachmiel, 90 N.J. 646 (1982), prosecutors' extraordinary power over the criminal justice system
• Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), extrajudicial comment on evidence that may never be admitted
• Sheppard v. Maxwell, 384 U.S. 333 (1966), prejudicial pretrial publicity

See also

• NJ ACPE Op. 261: Prosecutor's Counsel Representing the Accused
• NJ ACPE Op. 314: Municipal Prosecutor Before the DMV Director
• NJ ACPE Op. 252: Former Prosecutor Representing a Convicted Officer on Appeal

Source

• Landing page: https://www.njcourts.gov/sites/default/files/notices/2017/02/n170223g.pdf
• Original PDF: https://www.njcourts.gov/sites/default/files/notices/2017/02/n170223g.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by ACPE February 17, 2017

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 731

Extrajudicial Statements Featuring Displays of Seized Contraband Are Prohibited by Rule of Professional Conduct 3.6

The Advisory Committee on Professional Ethics received an inquiry from a prosecutor regarding the public display of drugs, weapons, or other contraband seized during a criminal investigation. The New Jersey Supreme Court previously decided that such extrajudicial speech by prosecutors violates Rule of Professional Conduct 3.6, as the contraband may be suppressed and the pretrial statement is likely to prejudice the criminal proceeding. The Committee is not persuaded by Inquirer's argument that the Court undermined or intended to reverse its prior precedent when it amended the Rules in 2004. Accordingly, extrajudicial statements featuring displays of seized drugs, weapons, or other contraband do not accord with Rules of Professional Conduct 3.6 and 3.8 and are not permitted.

The inquiry is governed by Rule of Professional Conduct 3.6 (Trial Publicity), which provides:

(a) 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 have a substantial likelihood of materially prejudicing an adjudicative proceeding.

(b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved; (2) the information contained in a public record; (3) that an investigation of the 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 that there exists the likelihood of substantial harm to an individual or to the public interest; and (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 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.

(c) Notwithstanding paragraph (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 paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

The Rule includes an Official Comment by the Supreme Court (November 17, 2003) listing statements ordinarily likely to have a materially prejudicial effect, including statements about the character, credibility, or criminal record of a party or witness; the possibility of a guilty plea or the contents of a confession; the results of examinations or tests or the identity or nature of physical evidence expected to be presented; an opinion as to guilt or innocence; information likely to be inadmissible that would create a substantial risk of prejudice; and the fact of a charge without explaining the presumption of innocence.

Rule of Professional Conduct 3.8 (Special Responsibilities of a Prosecutor) provides that the prosecutor in a criminal case shall, among other duties: (a) refrain from prosecuting a charge not supported by probable cause; (b) make reasonable efforts to assure the accused has been advised of the right to counsel; (c) not seek a waiver of important post-indictment pretrial rights from an unrepresented accused; (d) make timely disclosure of exculpatory and mitigating evidence; (e) not subpoena a lawyer to present evidence about a past or present client absent specified conditions; and (f) except for statements 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 associated personnel from making a statement the prosecutor would be prohibited from making under RPC 3.6 or this Rule.

The New Jersey Supreme Court has consistently taken the position, since at least the 1980s, that public display of evidence, such as seized drugs and other contraband, is an extrajudicial statement prohibited under Rule of Professional Conduct 3.6 and its predecessor Disciplinary Rule 7-107. In a March 16, 1989, Notice to the Bar, the Court stated that "[e]xtrajudicial comments on the alleged motives of the accused are inappropriate, as is the public production of any physical evidence such as seized drugs, confiscated weapons, or other captured contraband." [123 N.J.L.J. 638 (March 16, 1989).]

In 1982, the New Jersey Supreme Court addressed prejudicial pretrial publicity, the First Amendment, and defendants' rights to a fair trial in two companion cases: In re Hinds, 90 N.J. 604 (1982) (defense lawyer), and In re Rachmiel, 90 N.J. 646 (1982) (prosecutor). In Hinds, the Court found the public has "an interest in a fair trial that cannot be imperiled or diminished by out-of-court assertions by either defense or prosecution lawyers," an interest "particularly acute in the criminal context." Restrictions on lawyers' extrajudicial speech "discourage and prevent extraneous matters from being insinuated into a criminal case." In Rachmiel, the Court found a rebuttable presumption that statements on topics such as the "quality of the evidence" are likely to affect the criminal proceeding, and noted that prosecution and defense attorneys "have an extraordinary power to undermine or destroy the efficacy of the criminal justice system."

In 1991, the United States Supreme Court, in Gentile, connected the ethical restrictions to "the theory upon which our criminal justice system is founded: The outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding." 501 U.S. 1030, 1070 (1991).

In 2002, the Supreme Court Commission on the Rules of Professional Conduct (Pollock Commission) reviewed New Jersey's Rules in light of ABA revisions. It recommended deleting the list of materially prejudicial statements from RPC 3.6(b), adding a paragraph permitting responses to recent adverse publicity, and limiting the general restrictions to lawyers involved in the investigation or litigation. It also recommended adding the subpoena and extrajudicial-comment provisions to RPC 3.8. The Supreme Court adopted the recommendations on RPC 3.6 but placed the list of impermissible statements in an Official Comment rather than deleting it, and modified RPC 3.8 to incorporate the Attorney General's comments on subpoenas (paragraph e). Neither the Court nor the Attorney General's Office appeared to focus on the new paragraph (f), nor was there discussion of public display of seized contraband or any indication that the Court intended to supersede its prior precedent.

The ABA, in its Comments to Model Rule of Professional Conduct 3.6, did not relax existing rules on public display of contraband. Comment [1] warns that with no restrictions the result would be "the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence." Comment [5] specifies subjects more likely than not to have a material prejudicial effect, including "the identity or nature of physical evidence expected to be presented." Hence the Model Rule, then and now, prohibits descriptions or displays of seized contraband.

ABA Model Rule of Professional Conduct 3.8(f) prohibits statements "that have a substantial likelihood of heightening public condemnation of the accused," excepting statements "necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose." Comment [5] explains that paragraph (f) supplements Rule 3.6 and that a prosecutor "can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused." The Comment clarifies that RPC 3.8(f) supplements RPC 3.6 and does not supersede or negate those restrictions.

Some jurisdictions, such as New York, retained a portion of Disciplinary Rule 7-107(C)(7), expressly providing that lawyers may state, "at the time of the seizure, a description of the physical evidence seized." New Jersey did not retain this language when it adopted RPC 3.6 in 1984; the phrase was deleted from the 1984 ABA Model Rule because such evidence is frequently subject to suppression motions and "[p]ermitting publicity at the time of seizure can circumvent the effect of suppression by placing in public circulation evidence not admissible at trial." Like New York, the United States Department of Justice authorizes prosecutors to "describe" items seized at the time of arrest, 28 C.F.R. Section 50.2(b)(6)(v), but the same regulation cautions that this authorization "should be the subject of continuing review."

This Committee agrees that caution is warranted. Prosecutors have "the responsibility of a minister of justice and not simply that of an advocate." When it comes to extrajudicial speech, prosecutors "have an extraordinary power to undermine or destroy the efficacy of the criminal justice system." In re Rachmiel, supra, 90 N.J. at 656. Extrajudicial statements serve various purposes, such as enhancing the visibility of the police or publicly highlighting a campaign against drug trafficking. Prosecutors must weigh competing interests when engaging in extrajudicial speech and be aware that their motives are not unidimensional.

Inquirer states that there currently is an opioid crisis in New Jersey and that public display of contraband would further public awareness of the drug epidemic, underscore that law enforcement efforts are robust, and may deter drug-trafficking organizations. He argues that the prior precedent construing RPC 3.6 was superseded by the 2004 amendment to RPC 3.8, asserting that public display of confiscated drugs and weapons is necessary and serves a legitimate law enforcement purpose under RPC 3.8(f).

This argument sweeps away the focus of RPC 3.8(f), which concerns "necessary" statements that "heighten[] public condemnation of the accused." The classic example concerns a defendant who has murdered a guard in an escape from prison before trial; the prosecutor may publicly state that the defendant is "armed and dangerous" because the warning is necessary to protect the public against immediate harm. The inquirer's argument that public display of contraband serves a "legitimate law enforcement purpose" merely because it heightens public awareness of the drug epidemic is overbroad. There would be very little left of the prohibition against prejudicial extrajudicial statements if heightened public awareness of criminal activity were sufficient to justify such statements. "Legitimate law enforcement purpose" only covers communications necessary to protect against or alert the community about a specific and current danger to public safety.

Moreover, communications that go beyond what is minimally required for the public to achieve an objective understanding of what specific actions the prosecutor took, and that amount to an explanation or justification of why the prosecutor took those actions, are not "necessary to inform the public of the nature and extent of the prosecutor's action" within the meaning of RPC 3.8(f). RPC 3.8(f) presents a narrow exception to the prohibition on statements that heighten public condemnation of the accused; it does not supersede or negate the general provisions of RPC 3.6. When the New Jersey Supreme Court amended RPC 3.6 and 3.8 in 2004, there was no change to the preexisting law on permitted or prohibited extrajudicial statements, including public displays of drugs, weapons, or other contraband.

All agree that the current opioid crisis in New Jersey is frightening and tragic. It is hoped that law enforcement, medical providers, and addiction support services will increase their efforts and employ all lawful measures to attempt to stem this epidemic. Extrajudicial statements featuring displays of seized drugs, weapons, or other contraband, however, do not accord with Rules of Professional Conduct 3.6 and 3.8 and are not permitted.