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"New York Law Journal" featured Haub Law Professor Mimi Rocah in "Do Talking Head 'Experts' Have Special Ethical Responsibilities?"

06/12/2018 News Release Image

"New York Law Journal" featured Haub Law Professor Mimi Rocah in "Do Talking Head 'Experts' Have Special Ethical Responsibilities?"

The criminal justice system is grounded on a basic premise—I dare say, a possibly false premise—that jurors totally obey a judge’s instruction that they should not read, listen or watch anything about the pending case. When deciding a defendant’s guilt or innocence, jurors should only consider what is presented from the witness stand and, after instructions by the judge are given, what her fellow jurors say about the facts presented and the defendant’s guilt.

Assuming, as I do, that jurors do not completely avoid television, newspapers or internet trial coverage while serving, one wonders to what extent talking head or press-quotable lawyers, especially in high profile cases, are doing (albeit unintentionally) to potentially poison jury deliberations. And while journalists themselves, by their reportage, may seriously impact deliberations and therefore trial results, can’t we assume that jurors are likely to zero in on the opinions presented by lawyers whose biographical references describe them as former prosecutors, or defense lawyers?

Now, when I—a reasonably sophisticated consumer of courthouse reportage given my own experience as a lawyer—see who the talking head is, I, along with most readers of this article, am in a relatively unique position to handicap what they will say, and where their biases may lie. Some are former prosecutors who, only recently having left “the Office,” may even slip by saying, “This is what we would typically do.” Others are dyed-in-the-wool defense lawyers who show no particular objectivity when being quoted on a prosecutor’s technique in dealing with a vulnerable witness. Some are academics, who may look at things without practical application, so much so that they might—theoretically—convict their own grandmothers if presented with the right set of facts.

Put aside those of us who read the Law Journal. We are lawyers, generally able to separate the wheat from the chaff of the commentator du jour and, importantly, a very small segment of the jury pool. But what happens when, in high profile cases, talking-head lawyers are quoted in the tabloid press, The New York Times or Wall Street Journal, or any one of the several cable shows that make up our 24-hour news cycle? What is the obligation of lawyers to actually know the facts behind what they’re talking about in any specific case? Is it appropriate—indeed, ethical—for a lawyer to simply wing it, as seems so often to happen with some commentators? Or to opine, without first warning, “I know nothing of the facts or evidence, but here is what I think.”

The Rules

The Rules of Professional Conduct (NY and ABA Model Rules) are of little help as they do not address the ethics of acting as a third-party commentator on pending cases. Indeed, a lawyer’s duty of competence (at 1.1) runs only to his client. Prohibitions concerning trial publicity (Rule 3.6) address only those cases in which the lawyer is participating. There is however the catch-all: A lawyer shall not “engage in conduct that is prejudicial to the administration of justice” (Rule 8.4).

The ABA Criminal Justice Standards for the Defense Function addresses the issue head on. It provides that attorneys should educate the public and that a defense attorney “uninvolved” in a matter may offer “generalized media commentary.” The Standard warns: “Counsel acting as such … should make reasonable efforts to be well-informed about the facts of the matter and governing law.” 4-1.10(i) (see also, Prosecution Function, 3-1.10(i)).

Commentators Must Be Informed

In a post-OJ Simpson trial series of articles, Professors Erwin Chemerinsky and Laurie Levenson discuss the important role of lawyers in educating the public. But they also raise a host of ethical questions about lawyers acting as commentators and call for lawyers to adopt a voluntary set of rules. “Ethics of Being a Commentator,” 69 Southern Cal. L. Rev. 1301(1996) (Ethics I); 37 Santa Clara L. Rev. 913 (1997); and 50 Mercer L. Rev. 737 (1999).

In 1998, the National Association of Criminal Defense Lawyers (NACDL) did just that. While not in complete agreement with the professors, it created Ethical Considerations for Criminal Defense Attorneys Serving as Legal Commentators, notwithstanding some members’ “strong reservations about suggesting any limitations on public comment by attorneys.” NACDL News, “Ethical Considerations for Legal News Commentators Approved,” Champion 7 (1998).  The NACDL rules spotlight counsels’ “special obligation to educate the public” and, as is relevant here, requires its member-commentators to provide competent commentary—they should be “fully informed as to the legal and factual issue(s) under discussion.”

According to Professors Chemerinsky and Levenson, competence is the number one requirement for a legal commentator. Referring to several “painful examples” during the Simpson trial, they conclude, “[a] commentator does harm if he or she misstates the law or misstates the facts of what occurred.” They offer four key requirements: substantive knowledge of the law, practical experience in the courtroom, familiarity with the proceedings, and a willingness to do the research necessary to answer questions. Moreover—and this may be the hardest of all for some of us—a “legal commentator should be prepared to decline an offer to provide legal commentary when a matter is outside his or her experience.” Ethics I at 1319-1321.

Influencing a Sitting Jury

Importantly, “The commentator must realize that his or her role may at times be circumscribed by the overriding societal interest in providing both sides in the case with a fair trial.” Thus, a commentator should exercise caution and should not—through his crystal ball—try to predict the outcome. Ethics I at 1309, 1311.

Having said that, and given my personal belief that juries do not put their heads in the sand while sitting on a case, I asked noted staff writer for The New Yorker and senior legal analyst at CNN Jeffrey Toobin what he thought on the subject. While Toobin is a lawyer with considerable experience as a former prosecutor, he made clear that his role is as a journalist, not a legal commentator. He actually disagreed with my view about the potential influence the press or a lawyer-commentator may have on a jury, but he was clear about the role lawyers—and journalists—play:

I think the proper prism to analyze the issue is through responsible behavior by lawyers and by journalists. I think lawyers and journalists should behave responsibly regardless of how many people are watching. … I guess my own view is that both lawyers and journalists should approach their public statements with a great deal of humility. I don’t ultimately know what evidence is going to be presented at court. I don’t know for sure how a jury is going to respond to it. I think some lawyers like to make very categorical statements about good for the defense, bad for the prosecution, … based on having read a couple articles in the newspaper. And I just think that’s unwise. I don’t think it’s a violation of legal ethics. I don’t think it’s unduly influencing a jury pool. I just think it’s a bad practice.

I also spoke with Mimi Rocah, a former federal prosecutor, Distinguished Criminal Justice Fellow at the Elisabeth Haub School of Law at Pace University and MSNBC Legal Analyst for her thoughts:

Lawyers who speak publicly have an undeniable responsibility to be informed about the facts and law because there is always the potential that a then-serving juror may absorb their commentary. Even more likely, and perhaps of even greater consequence, people who are not currently serving as jurors may hear a talking head’s views on a case or on the workings of the criminal justice system and then apply what they think they learned in public service or, more broadly, in their interactions with the law and law enforcement. In other words, lawyers who speak publicly have a unique potential to influence people’s views not only as jurors, but as litigants and as citizens. Former prosecutors, in particular, must recognize that we represent the public face of government lawyers because those who continue to work in government are extremely limited in what they can and should say publicly. Especially now, when the Department of Justice and law enforcement are under constant attack from high profile voices, I view the former-prosecutor-talking-head as having a unique obligation to inform and educate a curious public about the high ethical standards and motivations of DOJ lawyers working on cases that are so much a part of public discourse.

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"KSDK 5 On Your Side" featured Law Professor Bennett Gershman in "It happened to my child. It can happen to somebody else's child"

05/18/18

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"Journal News" featured Pace University in a video "Pace University Graduation 2018"

05/18/18

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"Hit 107" featured Dyson Professor K. Mark Sossin in "A Baby Spa Has Opened Up & Mums Swear It Helps Their Babies Sleep Better!"

05/17/18

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"Radio New Zealand" featured Dyson Professor Matthew Bolton in "More needs to be done to help those affected by nuclear testing - academic"

05/17/18

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"Civil Eats" featured Haub Law Professor Margot Pollans and the Pace Food and Beverage Law Clinic in "Farmers Can’t Afford the Legal Help They Need. These Lawyers Are Mobilizing to Change That."

05/17/18

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"Journal News" featured Pace University in "Pace University Graduation 2018"

05/17/18

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"Pleasantville Daily Voice" featured Author James McBride in "Color of Water' Author James McBride Speaks At Pace Commencement"

05/17/18

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"Fox News" featured Haub Law Professor Margot Pollans in "What is the farm bill? From food stamps to conservation efforts, a look at the massive legislation"

05/15/18

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Director for the Office of Multicultural Affairs, Cornell Craig, was interviewed for NBC's Stay Tuned

05/13/18

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"Inside Higher Ed" featured Elizabeth Haub School of Law Professor Darren Rosenblum in "Professor Bans Laptops, Sees Grades Rise"

05/11/18

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"ABC News" featured Dyson adjunct Professor Jennifer Powell-Lunder in "What parents and teachers can do to not make the 7th grade the worst ever"

05/11/18

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"MassLive News" featured adjunct Dyson Professor Kency Gilet in "Young, black and Republican: Why this NRA member thinks education is key in the conversation about guns in America"

05/11/18

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"USA Today" featured Haub Law Professor Bennett Gershman in "AT&T, Novartis face scrutiny over hefty payments to Trump lawyer Michael Cohen"

05/10/18

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"Newsweek" featured Dyson Professor Matthew Bolton in "Did Trump Break the Law? U.S. Leaves Iran Deal, Violates World Order and Risks War, Experts Say"

05/10/18

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"U.S. News and World Report" featured Pace University student Solmaz Azimi in "5 College Seniors Share Their Job-Hunting Stories"

05/10/18

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"WAMC" featured Professor Matthew Bolton in "Head Of Disarmament Institute Reacts To Trump's Iran Decision"

05/10/18

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"Associated Press" featured Lubin Professor Larry Chiagouris in "AP source: NASCAR memo: France family 'dedicated' to sport"

05/10/18

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"Westchester County Business Journal" featured Dyson Professor Michelle Land in "Pace Students Walk for Water"

05/10/18

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"ABC Eyewitness News" featured Pace University’s documentary "Puerto Rico: Hope in the Dark"

05/09/18

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"Reuters" featured Dyson Professor Matthew Bolton in "Instant View: U.S. withdraws from Iran deal"

05/08/18

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"Westchester Magazine" featured Pace University's Health Care in "Pace University Celebrates the 40th Anniversary of University Health Care with New Location"

05/08/18

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"Pleasantville Patch" featured Dean of Pace's College of Health Professions Harriet R. Feldman and Assistant Professor and Founding Director of the Nutrition and Dietetics Program Christen Cupples Cooper in "Pace Creates Masters Program In Nutrition and Dietetics"

05/08/18

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"NBC News" featured Dyson Professor of Latin American History Michelle Chase in "Raul Castro's daughter to push for gay marriage in Cuba"

05/08/18

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"Pleasantville Patch" featured student Kelsey Parker in "Pace Student Awarded Fulbright U.S. Scholar Grant"

05/08/18

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Press Release: Pace University Announces Commencement Speakers and Honorary Degree Recipients: Leaders in Law, Education, the Arts, Business and Philanthropy

05/07/18

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"San Francisco Chronicle" featured Dyson Assistant Professor Anne Toomey's piece "Redefining 'impact' so research can help real people right away, even before becoming a journal article"

05/07/18

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"New York Post" featured Alumn Bruce Barish in "The craziest Tony goes to a Bronx dry cleaner"

05/07/18

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"Daily Voice" featured Seidenberg's director of Development Deth Sao in "2018 Rising Stars Unveiled By Business Council of Westchester"

05/07/18

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"The Associated Press" featured Dyson Professor Anne Toomey's piece in "Redefining ‘impact’ so research can help real people right away, even before becoming a journal article"

05/07/18

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Producing the Documentary travel course featured on Tiempo on ABC 7

05/06/18

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"Study Breaks" featured Pace University student Sammi Li in "Sammi Li Brings Asian Representation to Pace University"

05/04/18

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"Bloomberg" featured Haub Law Professor Bennett Gershman in "Ex-Goldman Sachs Programmer’s Conviction Upheld in New York "

05/04/18

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"The Evolllution" featured Assistant Vice President of Continuing and Professional Education Christine Shakespeare's piece "Managing Siloes: How Non-Traditional Divisions Can Innovate from the Fringes"

05/04/18

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"Fios1" featured Dyson Professor Dr. Maria Luskay and senior student Kelly Whritenour in "Pace University students find hope amid devastation in documentary on Puerto Rico"

05/03/18

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"The Examiner News" featured Dyson Professor Maria Luskay in "Pace Student Documentary Highlights the Suffering in Puerto Rico"

05/03/18

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"Washington Examiner" featured law professor Bennett Gershman in "Mueller questions 'leak' could mean trouble for Trump lawyers: Experts"

05/02/18

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"Hudson Valley News Network" featured the Pace Immigration Law Society in "Bracco Receives Immigrant Advocate Award"

05/02/18

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"The Examiner News" featured Biology Dyson Professor Dr. Melissa Grigione in "Coyote in Thornwood Park Attack Had Rabies"

05/02/18

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Press Release: Pace Student Awarded Fulbright U.S. Scholar Grant

05/02/18

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"The Hill" featured Law Professor Miriam Rocah's opinion piece "In the Cohen case, don’t buy the ‘vast government conspiracy’ defense"

05/01/18

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"New York Business Journal" featured Lubin Professor Bruce Bachenheimer in "Jopwell helps track down minority talent "

05/01/18

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Pace President Marvin Krislov and Dyson student Gabe Rivera on Fox 5 NY

05/01/18

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"Associated Press" featured Lubin Professor Larry Chiagouris in "Royal wedding mania: $50,000 hotel package, Union Jack condoms and more"

05/01/18

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"Our Town" featured Assistant Vice President of Cultural Affairs at the Schimmel Center for the Arts Martin Kagan in "The man behind the scenes"

05/01/18

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"Autism Support Network" featured student David Sharif's piece "I have autism, and I'm in college"

05/01/18

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"Westchester County Business Journal" featured Dean Johathan Hill's piece "Jonathan H. Hill: A workable cybersecurity solution for Westchester"

05/01/18

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"The Chronicle of Philanthropy" featured Gary Laermer in Other Notable Appointments "Raikes Has New Racial-Equity Leader; Disney Foundation Names Executive Director"

04/27/18

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"The Chronicle of Higher Education" featured Gary Laermer in "Transitions"

04/27/18

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"Inside Higher Ed" featured professor of computer applications Gregg Ramsay in "Online Students Don't Have to Work Solo"

04/27/18

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"Tri County Sentry" featured Lubin Professor Larry Chiagouris in "After Facebook Scrutiny, Is Google Next?"

04/27/18

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"Columbia Daily Tribune" featured Dyson Professors Matthew Bolton and Emily Welty in "Progress toward peace"

04/27/18

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"Westchester Rising" featured the College of Health Professions in "Pace Opens Health Center on Pleasantville Campus"

04/27/18

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"New York Law Journal" featured Law School Assistant Dean Jill Backer's piece in "What Is Diversity in the Legal Market? Or Is Everyone a Special Snowflake?"

04/27/18

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"Pleasantville Patch" featured Dyson Professors Michelle Land and John Cronin with Pace University students, faculty and staff in "High School, College Students Walk For World Water"

04/26/18

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"Community Health" featured dietitian nutritionist Christen Cupples Cooper, founding director of the nutrition and dietetics program at Pace University in "Is a plant-based diet right for you?"

04/25/18

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"Movie TV Tech Geeks" featured Lubin Professor Larry Chiagouris in "Will Google, YouTube soon be getting the Facebook treatment?"

04/25/18

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"The Westchester Business Journal" featured Pace President Marvin Krislov and Gary Laermer in "Pace University names Gary Laermer as VP for development and alumni relations"

04/25/18

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"The Business Journal" featured Lubin Professor Larry Chiagouris in "After Facebook scrutiny, is Google next?"

04/24/18