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CRIMINAL JUSTICE | WINTER 2023
criminal justice matters
In an endeavor to blunt the early release of
videos of police-involved shootings, some prosecu-
tors argue that the ethical ban on the “extrajudicial
statements” by a lawyer involved in a criminal mat-
ter, such as a prosecutor, applies and precludes
releasing those videos. “A lawyer who is partici-
pating 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.” Model Rules of Pro.
Conduct r. 3.6(a) (Am. Bar Ass’n). Importantly, this
model rule and usually its counterpart in state ju-
risdictions speak only to “extrajudicial statements,”
a phrase the model rules elected not to define.
This provision apparently intentionally chose not
to use or include the term “evidence,” even though
the model rules frequently use the word “evi-
dence” in other contexts. Indeed, no synonym for
evidence is used in this specific model rule.
Similarly, “[t]he prosecutor in a criminal case
shall ... 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 associ-
ated with the prosecutor in a criminal case from
making an extrajudicial statement that the prose-
cutor would be prohibited from making under Rule
3.6 or this Rule.” Id. r. 3.8(f). Here, again, the model
rules again chose to use the phrase “extrajudicial
comment,” while not using or including the term
“evidence” or a comparable term.
“Extrajudicial statements” and “comments,” un-
like evidence, are fraught with innuendo and spec-
ulation and are highly unlikely to be reproduced at
trial for a fact-finder to evaluate. Even an “extraju-
dicial statement” or an “extrajudicial comment” is
not ethically prohibited unless the speaker “knows
or should know” the statement or comment “will
have a substantial likelihood of materially prejudic-
ing an adjudicative proceeding in the matter.” It
J. VINCENT APRILE II retired after 30 years as a public
defender and joined Lynch, Cox, Gilman & Goodman,
PC, in Louisville, Kentucky, where he specializes
in criminal law, employment law, and litigation.
A
variety of reasons have been advanced to
justify the pre-indictment refusal of authori-
ties to release for public consumption video
recordings of shootings involving law enforcement
agents, whether captured on police cameras or on
videos taken by civilian bystanders. One rationale
that has been advanced is that ethical consid-
erations applicable to prosecutors preclude the
public release of such videos prior to any criminal
charges being lodged or even relatively early in the
pretrial proceedings. It is far from clear that ethical
precepts control this question.
This country places a high priority on the need
for transparency with regard to the criminal justice
system. “‘[I]t would be difficult to single out any
aspect of government of higher concern and im-
portance to the people than the manner in which
criminal trials are conducted.’” Gentile v. State Bar
of Nev., 501 U.S. 1030, 1035 (1991) [quoting Rich-
mond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575
(1980)]. “‘The knowledge that every criminal trial is
subject to contemporaneous review in the forum
of public opinion is an effective restraint on pos-
sible abuse of judicial power. . . . Without publicity,
all other checks are insufficient: in comparison of
publicity, all other checks are of small account.’” Id.
[quoting In re Oliver, 333 U.S. 257, 270–271 (1948)]. It
requires little effort to extrapolate these principles
of publicity and transparency to the pre-charging
stage of the criminal justice process.
In shootings involving law enforcement officers,
there is a widespread concern that authorities
will endeavor to protect the police from being
charged as well as a comparable viewpoint that
law enforcement officers will be scapegoated. In
this vortex of emotions, concerns, and prejudices,
early transparency and publicity with regard to
the actual circumstances of the shooting may be
imperative. “Public awareness and criticism have
even greater importance where, ... they concern
allegations of police corruption, see Nebraska
Press Assn. v. Stuart, 427 U.S. 539, 606 (1976) (Bren-
nan, J., concurring in judgment).” Id.
BY J. VINCENT APRILE II
Ethics and the
Pretrial Release of
Police-Involved-
Shooting Videos
Published in Criminal Justice, Volume 37, Number 4, Winter 2023. © 2023 by the American
Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored
in an electronic database or retrieval system without the express written consent of the American Bar Association.
