The presumption of innocence is one of the bedrocks of our criminal justice system. As some recent cases demonstrate, however, the presumption receives only a passing nod, if any, in the public forum. Indeed, restrained judgment as to the culpability of a criminal suspect is hard to come by in this era of instantaneous access and dissemination of information. A suspect may be tried and condemned in the court of public opinion before even being charged in the court of law. Pronouncements by prosecutors as to the charges investigated or filed and the evil their offices boldly have confronted often contribute to the slanted picture. As observed by commentators, “The defense thus gets started with the playing field tilted negatively, with the presumption of innocence buried under official pronouncements of guilt….”1
As a result, defense attorneys increasingly are required to grapple with whether and how to present a client’s story to the media. Recent interviews in connection with the Penn State scandal offer a glaring example of why (and how) not to do it and of the devastating impact a client’s direct statement to the press can have on a case. Nevertheless, defense attorneys are forced to contemplate such possibilities in order to respond to the general frenzy of negative information published by the news media in cases of public interest and the frequent—and occasionally unethical2—sound bites offered by government attorneys. When dealing with a client in the public eye, defense attorneys must weigh ethical, legal, and tactical considerations to rebalance the tilted field.
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