The bedrock constitutional principle of an individual’s presumption of innocence is undermined not by political extremists but by our own government. A number of government practices have steadily eroded this presumption, making it difficult for defendants to receive the fair administration of justice. These practices include the “perp walk” and pretrial disclosure of prejudicial and inflammatory evidence, such as an accused’s confession.
Much has been written about the practice of the perp walk since Dominique Strauss-Kahn was subjected to one after his arrest. The sensational media coverage of law enforcement parading a handcuffed Strauss-Kahn to a police car portrayed a damning image of guilt to the public, an image that will not be forgotten, notwithstanding the subsequent dismissal of all criminal charges.
Law enforcement should be prohibited from coordinating and facilitating the photography of a defendant during a perp walk. There is no legitimate reason for its continued use. It serves only to reinforce the natural tendency to assume that anyone charged with a crime is guilty.
Another accepted law enforcement practice having the same corrosive effect on an individual’s right to a fair trial is the public release of a defendant’s confession prior to trial.
Although numerous legal authorities, including the U.S. Supreme Court, have characterized confessions as “prejudicial” information,1 law enforcement frequently releases confessions of a defendant prior to trial. Just as they do with “perp walks,” law enforcement has justified this conduct as necessary to promote the legitimate governmental objective of keeping the public informed. That objective, however, is outweighed by the inescapable damage that the release of a confession causes to a defendant’s ability to receive a fair trial.2
Take, for example, the recent case of Levi Aron who is charged with the murder of a young child in Brooklyn. An Internet search of “Levi Aron” produces countless articles detailing Aron’s confessions provided to authorities after his arrest, confessions which were then disseminated widely in the media. Providing the public with the details of Aron’s confessions created an environment encouraging the belief that a trial is now pointless.
Aron’s attorneys have asserted that law enforcement coerced the confessions, but regardless of whether the confessions are ultimately excluded at trial, the damage to Aron’s defense has been done. The release of the confession to the public has tainted potential jurors’ minds regarding Aron’s guilt and, if a trial ensues, it will undoubtedly undermine the jurors’ ability to evaluate evidence and reach a verdict free from the taint.
Law enforcement must be barred by statute and through ethical restraints from disclosing a defendant’s confession before trial. This prohibition should extend to disclosure at press conferences and in any court filings.
Another recent example of unacceptable government practices is the public disclosure of grand jury testimony and evidence in connection with the allegations against Jerry Sandusky.
Two Pennsylvania grand jury presentment reports served as the basis for two separate arrests of Sandusky on multiple counts of sexual abuse. These reports, which were released to the public, graphically detailed Sandusky’s alleged crimes and included an exhaustive recitation of the evidence against him.
Soon after the release of the first report, Sandusky and his defense attorney participated in media interviews in an attempt to spin the facts as alleged in the reports in a way to reflect innocence. Numerous commentators have questioned the soundness of this strategy, but the decision to participate in interviews was most likely influenced by the media coverage of leaked testimony. Sandusky’s lawyers were forced to try and “level the playing field” which had been polluted by law enforcement’s public disclosure of inflammatory evidence.
While Sandusky and his attorney have endured scathing attacks for participating in interviews, law enforcement has been lauded for its public discussion and disclosure of the evidence. Without question, this pretrial disclosure of evidence jeopardizes Sandusky’s presumption of innocence and his ability to receive a fair trial. Although New York generally prohibits the disclosure of grand jury testimony before trial, the condoned practices of disclosing a defendant’s confession and orchestrating a perp walk have the same effect of destroying the presumption of innocence. Law enforcement officials have an obligation to restrict public disclosure of proof and images strictly to what is necessary for the public to understand the nature of the crimes, who the defendant is and the reasons why an individual has been arrested. State bar associations have the obligation to adopt and enforce ethical restrictions prohibiting prosecutors from releasing testimony and confessions at press conferences or as part of any official pleadings.
Robert C. Gottlieb is a criminal defense attorney with the Law Offices of Robert C. Gottlieb. Valerie Gotlib is a litigator concentrating in complex civil litigation and white collar defense. Justin F. Heinrich, an associate with the Law Offices of Robert C. Gottlieb, assisted in the preparation of this article.
1. People v. Moore, 42 N.Y.2d 421, 432 (1977) (“Obviously the most damaging type of publicity is that which shows or states that the defendant has committed the crime charged.”) (internal citations omitted). See Skilling v. United States, 130 S. Ct. 2896, 2916 (2010) (“although new stories about Skilling were not kind, they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight”); N.Y. ST RPC Rule 3.6.(b)(2) (“A statement ordinarily is likely to prejudice materially an adjudicative proceeding when it…refers to a criminal matter…and the statement relates to…the existence or contents of any confession, admission or statement given by a defendant or suspect[.]“); 28C.F.R. §50.2(b)(6)(ii) (“The release of certain types of information generally tends to create dangers of prejudice without serving a significant law enforcement function. Therefore, personnel of the Department should refrain from making available…[s]tatements, admissions, confessions, or alibis attributable to a defendant[.]“); USAM 1-7.550(B) (“Because the release of certain types of information could tend to prejudice an adjudicative proceeding, Department personnel should refrain from making available…[s]tatements, admissions, confessions, or alibis attributable to a defendant[.]“); S.D.N.Y. & E.D.N.Y. Local Criminal Rule 23.1(d)(2) (statements concerning the existence or contents of any confession, admission or statement given by the accused presumptively involved a substantial likelihood that their public dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice); ABA Fair Trial & Free Press Standard 8-1.1(b)(4) (statements relating to the existence or contents of any confession, admission, or statement given by the accused are ordinarily likely to have a substantial likelihood of prejudicing a criminal proceeding).
2. Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).