NYSBA 1991-03-21

Can a district attorney put out a press release describing evidence seized at arrest and saying how the prosecution plans to use it at trial?

Short answer: The opinion concluded that a district attorney may ordinarily describe physical evidence seized at arrest but may not state how the prosecution intends to use it at trial, which is presumptively likely to prejudice the proceeding.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 620: A district attorney's press release about seized evidence

Short answer: The opinion concluded that a district attorney ordinarily may issue a press release describing physical evidence seized at the time of arrest, but may not state how the prosecution intends to use that evidence at trial, because such a statement presumptively refers to the nature of physical evidence expected to be presented and is likely to prejudice the proceeding.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A district attorney asked whether he could issue a press release describing how the prosecution intended to use certain physical evidence seized at the time of arrest. The committee drew a line between a release that merely reports the evidence seized and one that adds the prosecution's intended use of that evidence at trial.

Applying DR 7-107 as amended effective September 1, 1990, the committee explained that the rule sorts statements into safe harbors and areas of significant risk, while keying ultimate liability to whether, under the circumstances, the statement has "a substantial likelihood of materially prejudicing an adjudicative proceeding" (DR 7-107(A)). A statement referring to "the identity or nature of physical evidence expected to be presented" is ordinarily deemed likely to prejudice the proceeding (DR 7-107(B)(3)). By contrast, simply reporting the fact of arrest and "a description of physical evidence seized" without elaboration falls within the safe harbor of DR 7-107(C)(7)(c), because those are facts the public reasonably ought to know.

The committee held that describing how the prosecution intends to use the seized evidence is outside that safe harbor and within the area of material risk, because of its proximity to what will happen at trial and the legal conclusion implicit in it. It noted the safe harbor is not absolute: DR 7-107(C)'s introductory proviso ties back to DR 7-107(A), so even a permitted statement is barred if the lawyer knows or reasonably should know it will have a substantial likelihood of materially prejudicing the proceeding. The committee answered the question, framed as the intended-use statement, in the negative.

Currency note

This opinion was issued in 1991, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The trial-publicity and prosecutor provisions cited here have since been recast in Rules 3.6 and 3.8. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a DA's press release describe physical evidence seized at arrest?

A: Yes, ordinarily. The committee held that simply describing physical evidence seized, without elaboration, falls within the safe harbor of DR 7-107(C)(7)(c) as information the public reasonably ought to know.

Q: Can the release say how the prosecution will use that evidence at trial?

A: No, ordinarily. The committee held that a statement about the intended use refers to the nature of physical evidence expected to be presented under DR 7-107(B)(3) and is presumptively likely to prejudice the proceeding.

Q: Is the safe harbor for describing seized evidence absolute?

A: No. The committee noted DR 7-107(C)'s proviso ties back to DR 7-107(A), so even a safe-harbor statement is barred if the lawyer knows or should know it will have a substantial likelihood of materially prejudicing the proceeding.

Background and rules framework

The opinion interpreted DR 7-107 (trial publicity) as amended in 1990, including its safe harbors (DR 7-107(C)), its presumptively risky categories (DR 7-107(B)), and the overarching "substantial likelihood of materially prejudicing an adjudicative proceeding" standard (DR 7-107(A)). The closest Model Rule analogues are Rule 3.6 (trial publicity) and Rule 3.8 (special responsibilities of a prosecutor).

Citations and references

Rules of Professional Conduct:

MR 3.6 (trial publicity)
MR 3.8 (special responsibilities of a prosecutor)
NY DR 7-107

Cases:

Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975): First Amendment limits on disciplining trial publicity
Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979): constitutional standards for trial-publicity rules

Source

Landing page: https://nysba.org/opinion-620/