Can a prosecutor make public statements about someone under investigation when no charges have been filed and a jury trial is only possible?

Plain-English summary

A Commonwealth's Attorney made statements to a newspaper reporter, quoted in a published article, explaining that an investigation had been referred to a special prosecutor because its subject was the Commonwealth's Attorney's opponent in the upcoming election for that office. No charges had been lodged when the statements were made, and none were ever filed. The committee was asked whether the Commonwealth's Attorney violated DR 7-106(A) given that no charges were pending at the time and none were ever pressed.

The controlling rule was DR 7-106(A), which barred a lawyer involved in the investigation, prosecution, or defense of a criminal matter that may be tried by a jury from making an extrajudicial statement, expected to be disseminated publicly, that the lawyer knows or should know creates a clear and present danger of interfering with the fairness of a jury trial (see also EC 7-30). The committee also pointed to EC 8-8, which cautions a lawyer who is a public officer against activities in which personal or professional interests may conflict with official duties.

Consistent with LE Op. 1542, the committee held that whether particular statements amount to a clear and present danger to a fair jury trial is a legal question requiring a factual determination beyond its purview. It cautioned, however, that if a factfinder ultimately determined the statements did create such a danger, the statements would be per se violative of DR 7-106(A). The committee added that the fact the matter was not ultimately tried by a jury is not dispositive. As the opinion's committee notes record, the current Rule 3.6(a) replaces the former "clear and present danger" standard with a "substantial likelihood" test.

Currency note

This opinion was issued in 1994, 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. The standard itself later changed: as the committee notes record, current Rule 3.6(a) replaces the former "clear and present danger" test with a "substantial likelihood" test. Treat this page as historical context, not current guidance.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 prosecutor publicly discuss an investigation before any charges are filed?

A: Under this 1994 opinion, the committee did not decide it outright; it held that whether the statements created a clear and present danger to a fair jury trial was a fact question beyond its purview, but that such statements would be per se improper if a factfinder found that danger.

Q: Does it matter that no charges were ever filed and no jury trial occurred?

A: No. The committee said the fact that the matter was not ultimately tried by a jury is not dispositive of whether the statements violated DR 7-106(A).

Q: Did the prosecutor's election interest matter?

A: The committee pointed to EC 8-8, which cautions a lawyer who is a public officer against activities in which personal interests may conflict with official duties, noting the subject was the prosecutor's election opponent.

Background and rules framework

The opinion interpreted former Virginia DR 7-106(A) (extrajudicial statements creating a clear and present danger to a fair jury trial), with EC 7-30 and EC 8-8. That trial-publicity standard now corresponds to ABA Model Rule 3.6, which (in Virginia's Rule 3.6(a)) applies a "substantial likelihood of material prejudice" test, and the prosecutor-specific publicity duties appear in Model Rule 3.8.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 7-106(A); EC 7-30; EC 8-8 (Code of Professional Responsibility)
• ABA Model Rule 3.6 (trial publicity); Model Rule 3.8 (special responsibilities of a prosecutor)

Other opinions cited:

• Virginia LE Op. 1542: whether extrajudicial statements create a clear and present danger to a fair jury trial is a factual determination beyond the committee.

See also

• VA LEO 1768: Prosecutor's Jury-Trial Appeal Remark
• VA LEO 1741: Prosecutors Advising Witnesses
• VA LEO 1608: Submitting Known-False Evidence

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1594.pdf

Original opinion text

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

Committee Opinion
June 14, 1994
LEGAL ETHICS OPINION 1594

EXTRAJUDICIAL STATEMENTS:
COMMONWEALTH'S ATTORNEY
MAKING PUBLIC STATEMENTS
REGARDING SUBJECT OF AN
INVESTIGATION.

You have presented a hypothetical situation in which a Commonwealth's Attorney
made statements to a newspaper reporter which were reported as quotes in a written
article. The substance of the statements concerned the Commonwealth's Attorney
referring an investigation to a special prosecutor because the subject of the investigation
was an opponent of the Commonwealth's Attorney in the upcoming election for that
office. At the time the Commonwealth's Attorney made these statements, no charges had
been lodged against the subject of the investigation. Finally, you indicate that no charges
were ever lodged against the subject of the investigation.
You have asked the committee to opine whether, under the facts of the inquiry, the
Commonwealth's Attorney has violated DR:7-106(A), in that there were no charges
pending at the time the Commonwealth's Attorney made the statements, and, in fact, no
charges were ever pressed.
The committee finds that 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 also directs your
attention to EC:8-8 which states in pertinent part that "[a] lawyer who is a public officer
... should not engage in activities in which his personal or professional interests are
or foreseeably may be in conflict with his official duties".
The committee has earlier opined that the determination of whether specific
extrajudicial statements, such as those you have 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 a finder of fact ultimately 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). See LE Op. 1542. The committee believes that the fact
that the matter was not ultimately tried by a jury is not dispositive.
Committee Opinion
June 14, 1994
Legal Ethics Committee Notes. – The new standard under Rule 3.6(a) replaces the
“clear and present danger” standard of former DM 7-106 with the “substantial likelihood”
test.