Did a prosecutor's pretrial statements to newspapers about a murder defendant violate the rule against extrajudicial statements that endanger a fair trial?

Plain-English summary

A prosecutor made a series of statements to two widely circulated newspapers about a defendant who had been arrested for robbery and murder but had not yet had a preliminary hearing or been indicted. The quoted statements described the defendant as the alleged shooter, said more arrests were expected, recounted the prosecutor's theory of how the victim was followed and killed, called the case "scary," "particularly brutal and heartless," and "the most brutal case I've seen," and announced he would seek a capital murder indictment and the death penalty. The committee was asked whether the prosecutor violated DR 7-106(A) by making extrajudicial statements that constituted a clear and present danger of interfering with the fairness of a jury trial.

The controlling rule was DR 7-106(A), which bars a lawyer in a criminal matter that may be tried by a jury from making an extrajudicial statement, expected to be publicly disseminated, that the lawyer knows or should know constitutes a clear and present danger of interfering with the fairness of the trial (see also EC 7-30).

The committee concluded that whether these particular statements amounted to a clear and present danger raised a legal question requiring a factual determination beyond the committee's purview, so it declined to decide it. It added only that if the appropriate court determined the statements did create such a danger, they would per se violate DR 7-106(A).

Currency note

This opinion was issued in 1993, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the opinion's own committee note observes, the "clear and present danger" standard of DR 7-106 was replaced by the "substantial likelihood" standard of Rule 3.6(a). Treat this page as historical context, not current guidance.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: Did the committee find the prosecutor's statements improper?

A: No. Under this 1993 opinion the committee declined to decide, holding that whether the statements created a clear and present danger to a fair trial was a fact-bound legal question beyond its purview.

Q: What did the committee say would happen if a court found a danger to the trial?

A: It said that if the appropriate court determined the statements constituted a clear and present danger of interfering with a fair jury trial, the statements would per se violate DR 7-106(A).

Q: What standard governs prosecutor trial publicity in Virginia now?

A: The opinion's committee note states that DR 7-106's "clear and present danger" standard was replaced by the "substantial likelihood" standard of Rule 3.6(a).

Background and rules framework

The opinion interpreted former Virginia DR 7-106(A), which prohibited extrajudicial statements in a jury-triable criminal matter that the lawyer knew or should have known created a clear and present danger to the fairness of the trial, together with EC 7-30. Trial-publicity limits are now in Virginia Rule 3.6, and a prosecutor's special obligations, including on extrajudicial comment, in Rule 3.8.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-106(A); EC 7-30 (Code of Professional Responsibility)
• ABA Model Rule 3.6 (trial publicity); Model Rule 3.8 (special responsibilities of a prosecutor)

See also

• VA LEO 1594: Prosecutor Extrajudicial Statements
• VA LEO 1538: Prosecutor's Conflict in a Quasi-Judicial Role
• VA LEO 1582: Part-Time Prosecutor's Threatening Letter

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1542.pdf

Original opinion text

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

Committee Opinion
September 2, 1993
LEGAL ETHICS OPINION 1542

EXTRAJUDICIAL PUBLIC
STATEMENTS BY PROSECUTOR.

You have presented a hypothetical situation in which a client has been arrested and
charged with the robbery and murder of another.
The prosecutor who will prosecute the case makes the following statements, reported in
two newspapers that are widely distributed throughout the jurisdiction. Client has not yet
had a preliminary hearing on the robbery and murder charges and has not yet been
indicted for any offense.
In newspaper #1, the prosecutor is quoted as saying: "Defendant is the one who is
alleged to be the shooter ... The investigation is continuing ... We expect some other
arrests in this case. We think others were involved and we're looking for them now ... "
The prosecutor said that the men followed the victim from the District of Columbia to a
certain neighborhood in the County before killing him and stealing his car. "It appears he
was spotted somewhere along the way and was followed right into the cul-de-sac where
he was killed," the prosecutor said. The prosecutor also said that he has not yet decided
whether the defendant will be tried on capital murder charges, which could carry the
death penalty upon conviction. (In a subsequent article in the same newspaper, he stated
he would seek the death penalty in this case). The prosecutor called the case "scary".
Further, the prosecutor stated: "It is certainly a particularly brutal and heartless kind of
killing. I've been doing this kind of stuff for a lot of years and this one is about as
heartless and brutal a kind of case as I've seen." "You realize this kind of case can happen
to anyone," he added.
In newspaper #2, the prosecutor is quoted as saying: "When the victim got out of the
car, he was forced to lie down on the street, where he was shot in the head at close range.
It's a terrible, terrible case. He was killed really at random. He didn't know these people.
They were just determined to get his particular car."
You indicate that the defendant is being held in the D.C. jail, and the prosecutor has
stated that he would seek to extradite the defendant if he does not agree to be transferred
to Virginia for trial.
Finally, you advise that, following a preliminary hearing, the prosecutor is quoted in a
major newspaper as follows: "I really believe this is the most brutal case I've seen in all
the years I've been a prosecutor. That's the reason I'm going to seek a capital murder
indictment."
You have asked the committee to opine whether, under the facts of the inquiry, the
prosecutor has violated DR:7-106(A), by making extrajudicial statements which
constitute a clear and present danger of interfering with the fairness of the trial by a jury.

Committee Opinion
September 2, 1993
As you have indicated, the appropriate and controlling Disciplinary Rule related to your
inquiry is DR:7-106(A), which states that a lawyer participating in or associated with the
investigation or the prosecution or the defense of a criminal matter that may be tried by a
jury shall not make or participate in making an extrajudicial statement that a reasonable
person would expect to be disseminated by means of public communication that he
knows, or should know, constitutes a clear and present danger of interfering with the
fairness of the trial by a jury. See also EC:7-30.
The committee is of the view that, under the hypothetical facts you have presented, the
determination of whether the extrajudicial statements cited constitute a clear and present
danger of interfering with the fairness of the trial by a Jury raises a legal question
requiring a factual determination beyond the purview of this committee. However, the
committee cautions that should the appropriate court determine that the extrajudicial
statements did constitute such a danger to a fair trial, clearly the statements would also be
per se violative of DR:7-106(A).
Legal Ethics Committee Notes. – The “clear and present danger” standard under DR
7-106 is replaced with “substantial likelihood” standard under Rule 3.6(a).