[Congressional Record Volume 144, Number 82 (Monday, June 22, 1998)]
[House]
[Pages H4947-H4948]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        RESTRICTIONS ON DISCLOSURE OF INFORMATION BY PROSECUTORS

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Michigan (Mr. Conyers) is recognized for 5 minutes.
  Mr. CONYERS. Mr. Speaker, I include for the Record the following 
excerpts from the Department of Justice guidelines, the Rules of 
Professional Responsibility for the District of Columbia Bar, the 
American Bar Association's Standards of Professional Conduct, and the 
Rule of the District Court of the District of Columbia concerning a 
prosecutor's obligations not to publicly disclose confidential 
investigative information.
  The material referred to is as follows:

          Department of Justice Guidelines Re: Leaks To Press

     1-7.510 Non-Disclosure of Information
       At no time shall any component or personnel of the 
     Department of Justice furnish any statement or information 
     that he or she knows or reasonably should know will have a 
     substantial likelihood of materially prejudicing an 
     adjudicative proceeding.
       (United States Attorneys' Manual, Chapter 7, Section 1-
     7.510)
     1-7.530 Disclosure of Information Concerning Ongoing 
         Investigations
       a. Except as provided in subparagraph (b) of this 
     paragraph, components and personnel of the Department shall 
     not respond to questions about the existence of an ongoing 
     investigation or comment on its nature or progress, including 
     such things as the issuance or serving of a subpoena, prior 
     to the public filing of the document.
       b. In matters that have already received substantial 
     publicity, or about which the community needs to be reassured 
     that the appropriate law enforcement agency is investigating 
     the incident, or where release of information is necessary to 
     protect the public interest, safety, or welfare, comments 
     about or confirmation of an ongoing investigation may need to 
     be made
     1-7.550 Concerns of Prejudice
       Because the release of certain types of information could 
     tend to prejudice an adjudicative proceeding, Department 
     personnel should refrain from making available the following:
       a. Observations about a defendant's character;
       b. Statements, admissions, confessions, or alibis 
     attributable to a defendant, or the refusal or failure of the 
     accused to make a statement;
       c. Reference to investigative procedures, such as 
     fingerprints, polygraph examinations, ballistics tests, or 
     forensics services, including DNA testing, or to the refusal 
     by the defendant to submit to such tests or examinations;
       d. Statements concerning the identity, testimony, or 
     credibility of prospective witnesses;
       e. Statements concerning evidence or argument in the case, 
     whether or not it is anticipated that such evidence or 
     argument will be used at trial;
       f. Any opinion as to the defendant's guilt, or the 
     possibility of a plea of guilty to the offense charged, or 
     the possibility of a plea of a lesser offense.
       (United States Attorneys' Manual Chapter 7, Section 1-
     7.550)
                                  ____


    Rules of Professional Responsibility (DC Bar) Re: Leaks to Press

     Rule 3.8  Special Responsibilities of a Prosecutor
       The Prosecutor in a Criminal Case Shall Not:
       (f) Except for statements which are necessary to inform the 
     public of the nature and extent of the prosecutor's action 
     and which serve a legitimate law enforcement purpose, make 
     extrajudicial comments which serve to heighten condemnation 
     of the accused;
       (District of Columbia Rules of Court--Rules Governing the 
     District of Columbia Bar. Appendix A, Rules of Professional 
     Conduct Advocate, Rule 3.8)
       Comment [2] . . . Indeed, because of the power and 
     visibility of a prosecutor, the prosecutor's compliance with 
     these Rules, and recognition of the need to refrain even from 
     some actions technically allowed to other lawyers under the 
     Rules, may, in certain instances, be of special importance. 
     For example, Rule 3.6 prohibits extrajudicial statements that 
     will have a substantial likelihood of destroying the 
     impartiality of the judge or jury. In the context of a 
     criminal prosecution, pretrial publicity can present the 
     further problem of giving the public the incorrect impression 
     that the accused is guilty before having been proven guilty 
     through the due process of the law. It is unavoidable, of 
     course, that the publication of an indictment may itself have 
     severe consequences for an accused. What is avoidable, 
     however, is extrajudicial comment by a prosecutor that serves 
     unnecessarily to heighten public condemnation of the accused 
     without a legitimate law enforcement purpose before the 
     criminal process has taken its course. When that occurs, even 
     if the ultimate trial is not prejudiced, the accused may be 
     subjected to unfair and unnecessary condemnation before the 
     trial takes place. Accordingly, a prosecutor should use 
     special care to avoid publicity, such as through televised 
     press conferences, which would unnecessarily heighten 
     condemnation of the accused.
       (District of Columbia Rules of Court--Rules Governing the 
     District of Columbia Bar. Appendix A, Rules of Professional 
     Conduct Advocate, Comment 2)
       Comment [3] Nothing in this comment, however, is intended 
     to suggest that a prosecutor may not inform the public of 
     such matters as whether an official investigation has ended 
     or is continuing, or who participated in it, and the 
     prosecutor may respond to press inquiries to clarify such 
     things as technicalities of the indictment, the status of the 
     matter, or the legal procedures that will follow. Also, a 
     prosecutor should be free to respond, insofar as necessary, 
     to any extrajudicial allegations by the defense of 
     unprofessional or unlawful conduct on the part of the 
     prosecutor's office.
       (District of Columbia Rules of Court--Rules Governing the 
     District of Columbia Bar. Appendix A, Rules of Professional 
     Conduct Advocate, Comment 3)
                                  ____


                    ABA Standards Re: Leaks to Press

     Standards 3-1.4 Public Statements
       (a) A prosecutor should not make or authorize the making of 
     an extrajudicial statement that a reasonable person would 
     expect to be disseminated by means of public communication if 
     the prosecutor knows or reasonably should know that it will 
     have a substantial likelihood of prejudicing a criminal 
     proceeding.
       (b) A prosecutor should exercise reasonable care to prevent 
     investigators, law enforcement personnel, employees, or other 
     persons assisting or associated with the prosecutor from 
     making an extrajudicial statement that the prosecutor would 
     be prohibited from making under this Standard.
       (ABA Standards for Criminal Justice: Prosecution Function 
     and Defense Function, 3rd ed., Standard 3-1.4.0, p. 12-13)

[[Page H4948]]

     Relationship to Other Standards (Standard 3-1.4)
       . . . Both Model Rule 3.6 and the Fair Trial and Free Press 
     Standards contain lists of the types of statements that can 
     ordinarily be presumed to violate or not to violate the 
     strictures of this section. Fair Trial and Free Press 
     Standards 8-1.1(b) and (c) provide as follows:
       (b) Statements relating to the following matters are 
     ordinarily likely to have a substantial likelihood of 
     prejudicing a criminal proceeding:

                           *   *   *   *   *

       (3) the opinion of the lawyer on the guilt of the 
     defendant, the merits of the case or the merits of the 
     evidence in the case;
       (4) the existence or contents of any confession, admission, 
     or statement given by the accused, or the refusal or failure 
     of the accused to make a statement;
       (5) the performance of any examinations or tests, or the 
     accused's refusal or failure to submit to an examination or 
     test, or the identity or nature of physical evidence expected 
     to be presented;

                           *   *   *   *   *

       (8) information which the lawyer knows or has reason to 
     know would be inadmissible as evidence in a trial;
     Standard 3-1.5 Duty to Respond to Misconduct
       (a) Where a prosecutor knows that another person associated 
     with the prosecutor's office is engaged in action, intends to 
     act or refuses to act in a manner that is a violation of a 
     legal obligation to the prosecutor's office or a violation of 
     law, the prosecutor should follow the policies of the 
     prosecutor's office concerning such matters.
       (ABA Standards for Criminal Justice Prosecution Function 
     and Defense Function, Standard 3-1.5 (a), p. 17)
                                  ____


              D.C. District Court Rules Re: Leaks to Press


 Rules of the United States district court for the district of columbia

     Title III. Criminal Rules.
       (b) Conduct of Attorneys in Criminal Cases.
       (1) It is the duty of the lawyer or law firm not to release 
     or authorize release of information or opinion which a 
     reasonable person would expect to be disseminated by means of 
     public communication, in connection with pending or imminent 
     criminal litigation with which the lawyer or the law firm is 
     associated, if there is a reasonable likelihood that such 
     dissemination will interfere with a fair trial or otherwise 
     prejudice the due administration of justice.
       (2) With respect to a grand jury or other pending 
     investigation of any criminal matter, a lawyer participating 
     in or associated with the investigation shall refrain from 
     making any extrajudicial statement which a reasonable person 
     would expect to be disseminated by means of public 
     communication, that goes beyond the public record or that is 
     not necessary to inform the public that the investigation is 
     underway, to describe the general scope of the investigation, 
     to obtain assistance in the apprehension of a suspect, to 
     warn the public of any dangers, or otherwise to aid in the 
     investigation.
       (3) the prosecution . . . shall not release or authorize 
     the release of any extrajudicial statement which a reasonable 
     person would expect to be disseminated by means of public 
     communication, relating to that matter and concerning:
       (ii) The existence or contents of any confession, 
     admission, or statement given by the accused, or the refusal 
     or failure of the accused to make any statement;
       (iii) The performance of any examinations or tests or the 
     accused's refusal or failure to submit to an examination or 
     test;
       (v) The possibility of a plea of guilty to the offense 
     charged or a lesser offense;
       (vi) Any opinion as to the accused's guilt or innocence or 
     as to the merits of the case or the evidence in the case.
       (District of Columbia Rules of Court--Rules of the US 
     District Court for D.C., Title III. Criminal Rules, Rule 
     308b)
       (c) Orders in Widely Publicized or Sensational Cases. In a 
     widely publicized or sensational criminal case, the Court, on 
     motion of either party or on its own motion, may issue a 
     special order governing such matters as extrajudicial 
     statements by parties, witnesses and attorneys likely to 
     interfere with the rights of the accused to a fair trial by 
     an impartial jury, the seating and conduct in the courtroom 
     of spectators and news media representatives, the management 
     and sequestration of jurors and witnesses, and any other 
     matters which the Court may deem appropriate for inclusion in 
     such an order.
       (District of Columbia Rules of Court--Rules of the US 
     District Court for D.C., Title III. Criminal Rules, Rule 
     308b)

  Mr. Speaker, the Department of Justice guidelines concerning leaks to 
the press, 1-7.510, Non-Disclosure of Information:

       At no time shall any component or personnel of the 
     Department of Justice furnish any statement or information 
     that he or she knows or reasonably should know will have a 
     substantial likelihood of materially prejudicing an 
     adjudicative proceeding.

  From the United States Attorneys' Manual, Chapter 7, Section 1-7.510.
  Disclosure of Information Concerning Ongoing Investigations:

       The Department shall not respond to questions about the 
     existence of an ongoing investigation or comment on its 
     nature or progress.
  1-7.550. Concerns of Prejudice:

       Department personnel should refrain from making available 
     the following:
       Section a. Observations about a defendant's character;
       Section b. Statements, admissions, confessions, or alibis 
     attributable to a defendant, or the refusal or failure of the 
     accused to make a statement;
       Section d. Statements concerning the identity, testimony, 
     or credibility of prospective witnesses;
       Section e. Statements concerning evidence or argument in 
     the case, whether or not it is anticipated that such evidence 
     or argument will be used at trial;
       Section f. Any opinion as to the defendant's guilt, or the 
     possibility of a plea of guilty to the offense charged, or 
     the possibility of a plea of a lesser offense.

  From the United States Attorneys' Manual, Chapter 7, Section 1-7.550.
  Rules of Professional Responsibility of the D.C. Bar, re Leaks to the 
Press.
  Rule 3.8. Special Responsibilities of a Prosecutor:

       The prosecutor in a criminal case shall not make 
     extrajudicial comments which serve to heighten condemnation 
     of the accused. For example, Rule 3.6 prohibits extrajudicial 
     statements that will have a substantial likelihood of 
     destroying the impartiality of the judge or jury. What is 
     avoidable is extrajudicial comment by a prosecutor that 
     serves unnecessarily to heighten public condemnation of the 
     accused without a legitimate law enforcement purpose before 
     the criminal process has taken its course.

  Finally, Mr. Speaker, with regard to the American Bar Association's 
standards concerning leaks to the press.
  Standards 3-1.4(b):

       A prosecutor should exercise reasonable care to prevent 
     investigators, law enforcement personnel, employees, or other 
     persons assisting or associated with the prosecutor from 
     making an extrajudicial statement that the prosecutor would 
     be prohibited from making under this Standard. Statements 
     relating to the following matters are ordinarily likely to 
     have a substantial likelihood of prejudicing a criminal 
     procedure.

                              {time}  2045

  The opinion of the lawyer on the guilt of the defendant, the merits 
of the case or the merits of the evidence in the case, the existence or 
contents of any confession, admission or statement by the accused, or 
the refusal or failure of the accused to make a statement.

                          ____________________