we Law Journal The New York Times Wall Street Journal |

The Rules

third-party |

Commentators Must Be Informed

Simpson |

Influencing a Sitting Jury

The New Yorker

I think the proper prism to analyze the issue is through responsible behavior by lawyers and by journalists. I think lawyers and journalists should behave responsibly regardless of how many people are watching. … I guess my own view is that both lawyers and journalists should approach their public statements with a great deal of humility. I don't ultimately know what evidence is going to be presented at court. I don't know for sure how a jury is going to respond to it. I think some lawyers like to make very categorical statements about good for the defense, bad for the prosecution, … based on having read a couple articles in the newspaper. And I just think that's unwise. I don't think it's a violation of legal ethics. I don't think it's unduly influencing a jury pool. I just think it's a bad practice.

Lawyers who speak publicly have an undeniable responsibility to be informed about the facts and law because there is always the potential that a then-serving juror may absorb their commentary. Even more likely, and perhaps of even greater consequence, people who are not currently serving as jurors may hear a talking head's views on a case or on the workings of the criminal justice system and then apply what they think they learned in public service or, more broadly, in their interactions with the law and law enforcement. In other words, lawyers who speak publicly have a unique potential to influence people's views not only as jurors, but as litigants and as citizens. Former prosecutors, in particular, must recognize that we represent the public face of government lawyers because those who continue to work in government are extremely limited in what they can and should say publicly. Especially now, when the Department of Justice and law enforcement are under constant attack from high profile voices, I view the former-prosecutor-talking-head as having a unique obligation to inform and educate a curious public about the high ethical standards and motivations of DOJ lawyers working on cases that are so much a part of public discourse.

A Final Comment

objective Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan LLP. He is an adjunct professor at Fordham Law School. Dale J. Degenshein, special counsel at Stroock, assisted in the preparation of this article.