May prosecutors in the Attorney General's office release, or advise police to release, body-worn-camera video in response to a public records request?

Plain-English summary

The panel was asked whether lawyers in the Office of the Attorney General violate Rule 3.6 (trial publicity) or Rule 3.8(e) (special responsibilities of a prosecutor) by advising law enforcement agencies to release police body-worn-camera video in response to public records requests. The question arose from the Attorney General's June 17, 2020 protocol for reviewing incidents involving deadly force, excessive force, and custodial deaths, which directs law enforcement to make public release of recordings in accordance with law and, as updated, to consult the Attorney General's office when presented with a public records request for pre-trial release of body-worn-camera footage.

The panel concluded it is not a violation of Rule 3.6 or Rule 3.8(e) for the Attorney General and the office's lawyers to release, or to advise law enforcement to release, body-worn-camera or similar video in response to a public records request and in compliance with the Rhode Island Access to Public Records Act. It cited a New Jersey advisory opinion (ACPE Docket No. 03-2018) concluding that prosecutors' compliance with proper public-document requests for dash-cam and body-worn-camera footage of police deadly-force incidents is consistent with Rules 3.6 and 3.8.

The panel added a qualification: when advising law enforcement to release such video, Rule 3.8(e) also requires the prosecutor to advise law enforcement to refrain from making extrajudicial statements the prosecutor would be prohibited from making under Rule 3.6 (statements with a substantial likelihood of prejudicing an adjudicative proceeding) or Rule 3.8(e) (statements with a substantial likelihood of heightening public condemnation of the accused). The panel noted that whether the footage is a public record, whether release is required under the Act, and whether the protocol conflicts with other law are questions of substantive law outside its jurisdiction.

In practice

Under this opinion, releasing or advising the release of body-worn-camera video in response to a public records request under the Rhode Island Access to Public Records Act does not, by itself, violate Rule 3.6 or Rule 3.8(e). The panel held that when a prosecutor advises law enforcement to release such video, Rule 3.8(e) additionally requires advising law enforcement to refrain from extrajudicial statements barred by Rule 3.6 or Rule 3.8(e). The panel limited its guidance to the Rules of Professional Conduct and treated whether the footage is a public record, and whether release is required, as substantive-law questions outside its jurisdiction.

Common questions

Q: Does releasing body-worn-camera video to satisfy a public records request violate the trial-publicity rule?

A: No. The panel concluded it is not a violation of Rule 3.6 or Rule 3.8(e) to release, or advise release of, such video in response to a public records request in compliance with the Rhode Island Access to Public Records Act.

Q: Does the prosecutor have to do anything else when advising release?

A: Yes. The panel concluded Rule 3.8(e) requires the prosecutor to advise law enforcement to refrain from making extrajudicial statements the prosecutor would be barred from making under Rule 3.6 or Rule 3.8(e).

Q: Did the panel decide whether the video is a public record that must be released?

A: No. The panel stated that whether the footage is a public record, whether release is required under the Act, and whether the protocol conflicts with other law are substantive-law questions for judicial determination outside its jurisdiction.

Background and rules framework

The opinion applies Rule 3.6 (Model Rule 3.6, trial publicity), which bars a lawyer participating in a matter from making an extrajudicial statement the lawyer knows or reasonably should know will be publicly disseminated and have a substantial likelihood of materially prejudicing an adjudicative proceeding, and Rule 3.8(e) (Model Rule 3.8, special responsibilities of a prosecutor), which, with an exception for statements necessary to inform the public and serving a legitimate law enforcement purpose, requires a prosecutor to refrain from extrajudicial comments with a substantial likelihood of heightening public condemnation of the accused and to exercise reasonable care to prevent associated personnel from making statements the prosecutor could not. The panel read compliance with the Access to Public Records Act as consistent with both rules, following New Jersey ACPE Docket No. 03-2018.

Citations and references

Rules of Professional Conduct:

• MR 3.6 (trial publicity)
• MR 3.8 (special responsibilities of a prosecutor; paragraph (e))
• RI RPC 3.6, RI RPC 3.8

Statutes:

• Rhode Island Access to Public Records Act, referenced as the basis for release; not quoted.

Cases:

• None cited.

Other opinions cited:

• N.J. Advisory Committee on Professional Ethics, ACPE Docket No. 03-2018 (Mar. 23, 2018): prosecutors' compliance with proper public-document requests for dash-cam and body-worn-camera footage of police deadly-force incidents is consistent with Rules 3.6 and 3.8.

See also

• RI EAP Op. 2025-13: Police-Prosecutor May Not Defend Against the Same Department
• RI EAP Op. 2024-09: Firm as Municipal Prosecutor and Private Clients, a Consentable Conflict

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP-2020-02.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2020-02
Issued December 15, 2020

FACTS

The Panel has been asked whether it is a violation of Rule 3.6 (Trial publicity) and Rule 3.8(e) (Special responsibilities of a prosecutor) of the Rules of Professional Conduct, for lawyers in the Office of the Attorney General to advise law enforcement agencies to release police body-worn-camera video in response to public records requests. A document entitled "The Attorney General's Protocol for the Review of Incidents Involving the Use of Deadly Force, Excessive Force and Custodial Deaths" dated June 17, 2020, includes a directive to law enforcement agencies requiring that public release of video and audio recordings be made in accordance with the law. An update to the Protocol requires law enforcement agencies to consult with the Office of the Attorney General when they are presented with a public records request for pre-trial release of body-worn-camera footage.

OPINION

It is the opinion of the Panel that it is not a violation of Rule 3.6[1] and Rule 3.8(e)[2] for the Attorney General and lawyers in the Office of the Attorney General to release, or to advise law enforcement agencies to release, police body-worn-camera video or similar video footage, in response to a public records request and in compliance with the Rhode Island Access to Public Records Act. See N.J. Advisory Committee on Professional Ethics, ACPE Docket No. 03-2018, Mar. 23, 2018 (prosecutors' compliance with proper public document requests for dash-cam and body-worn camera footage of police deadly-force incidents is consistent with Rules 3.6 and 3.8.)

Should lawyers in the Office of the Attorney General advise law enforcement agencies to release body-worn-camera video or similar video footage, Rule 3.8(e) also requires that they advise law enforcement agencies to refrain from making extrajudicial statements that the prosecutor would be prohibited from making under Rule 3.6 (comments that have a substantial likelihood of prejudicing an adjudicative proceeding), or under Rule 3.8(e) (comments that have a substantial likelihood of heightening public condemnation of an accused.)

Whether body-worn-camera video and similar video footage are public records under the Rhode Island Access to Public Records Act; whether release of specific body-worn-camera video or similar video footage is required under the Act; and whether any portion of The Protocol conflicts with the Act or other law, are issues of substantive law for judicial determination that are outside the jurisdiction of the Panel. The Panel's guidance is limited to interpretation of the Rules of Professional Conduct and does not extend to any other rules, regulations, or laws that may have bearing on the issues raised by this inquiry.

[1] Rule 3.6. Trial publicity states in pertinent part: (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 be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

[2] Rule 3.8. Special responsibilities of a prosecutor. The prosecutor in a criminal case shall: (e) 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.