In a law review article, “The Prosecutor’s Duty of Silence” [79 Albany Law Review 1183 (2016)], I argued that prosecutors have an ethical duty to remain silent and not make public comments about specific cases or individuals currently under investigation or being litigated. As I wrote, “a prosecutor’s public statements can destroy a person’s reputation, prejudice his right to a fair trial, and undermine the public’s respect for the way the criminal law is administered.”
But I did not argue that a prosecutor should always refrain from making public statements, or that it is improper for a prosecutor to speak out concerning matters of public concern. Indeed, I wrote that some prosecutor speech is legitimate and necessary to serve significant public interests that might relate to prosecutor initiatives, the fairness and integrity of the criminal justice system, and the safety of the community. I also noted that the line between legitimate and illegitimate prosecutor speech is not clear-cut as an ethical matter nor is it clear how various modes of prosecutor speech may be protected under the First Amendment.
