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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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09/28/18

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"Alternet" featured Pace University's Haub Law Professor Mimi Rocah in "'He Couldn't Answer': Ex-Federal Prosecutor Reveals Why the GOP Got Spooked and Drastically Changed Strategy During Kavanaugh's Testimony"

09/28/18

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"El Tiempo Latino" featured Pace University in "El Documental De Estudiantes de Pace University 'Puerto Rico: Esperanza en la Oscuridad' Saldrá al Aire en PBS Para Conmemorar el Primer Aniversario del Huracán María"

09/28/18

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"RawStory" featured Pace University's Haub Law Professor Mimi Rocah in "‘Should be automatically disqualifying’: Ex-prosecutor explains implications of shocking gang rape allegations"

09/27/18

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Press Release: Pace University’s School of Performing Arts Welcomes Incoming Freshmen Class

09/26/18

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"Pleasantville Patch" featured Pace University President Marvin Krislov in "Pace President Named to "Power 50"

09/25/18

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"AdAge" featured Pace University's Lubin School of Business Professor Larry Chiagouris in "Levi's promotes the vote in new campaign"

09/25/18

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"Fios1" featured Pace University Students in "Diving Deeper Into The Constitution"

09/24/18

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"The Washington Times" featured Pace University's Lubin School of Business Professor Larry Chiagouris in "Pop culture blackout: Melania Trump missing from magazine covers, TV appearances"

09/24/18

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"Men's Health" featured Pace University's College of Health Professions Professor Christen Cupples Cooper in "How to Gain Weight and Build Bigger Muscles"

09/24/18

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"New York Post" featured Pace University's Seidenberg School of Computer Science and Information Systems Professor Li-Chiou Chen in "You may not have even heard of these IT jobs, but demand for them is soaring"

09/24/18

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"AdAge India" featured Pace University's Lubin School of Business Professor Randi Priluck in "#MobileWatch: Hello Alexa, Talk to Me!"

09/24/18

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"Fios1" featured Pace Dyson Students in "Pace students who made Hurricane Maria documentary reflect 1 year later"

09/21/18

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"Taipei Times" featured Dyson Professor Joseph Tse-Hei Lee's piece "Cities on coasts must learn from Mangkhut"

09/21/18

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Press Release: Pace University’s Student Documentary ‘Puerto Rico: Hope in the Dark’ to Air on PBS to Mark One Year Anniversary of Hurricane Maria

09/20/18

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"Raw Story" featured Pace University's Haub Law Professor Mimi Rocah in "‘Height of hypocrisy!’ Ex-prosecutor shreds GOP for insisting on Ford testimony while letting Trump avoid Mueller"

09/20/18

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"Westchester Magazine" featured James Sterngold in "The Latest and Most Notable Hires and Promotions Across the Westchester Community"

09/20/18

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"NBC News" featured Pace University Haub Law Professor Mimi Rocah in "The allegations against Brett Kavanaugh are not simply a 'he said, she said' situation"

09/19/18

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"Pleasantville Patch" featured Pace University President Marvin Krislov in "Westchester Business Council Members On New Movers & Shakers List"

09/19/18

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Press Release: Six New York City Universities Work to Reduce Water Use

09/19/18

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"Synthesio" featured Pace alumna Tatiana Tilearcio's piece "Higher Education Marketing Strategies Used to Engage Pace University Alumni"

09/18/18

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"The Atlantic" featured Pace University's Haub Law Professor Mimi Rocah in "Michael Flynn Will Finally Be Sentenced"

09/18/18

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"CBS News" featured director of the Pace University Small Business Development Center Andrew Flamm in "Launching a new business: First key steps"

09/18/18

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"News12" featured Pace University in "Pace University students learn significance of US Constitution"

09/18/18

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"Huffington Post" featured College of Health Professions Christen Cupples Cooper in "The Pros And Cons Of Food Delivery And Meal Prep Services"

09/17/18

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"City & State" featured President Marvin Krislov in "The Westchester Power 50; 11-50"

09/17/18

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"Vox" featured Haub Law Professor Mimi Rocah in "The big question about Manafort’s reported plea deal with Mueller: will he cooperate?"

09/14/18

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"Eurasia Review" featured Lubin School professor emeritus Joseph Salerno's piece "The Great Cryptocurrency Crash Of 2018"

09/14/18

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Press Release: Pace University Education Professor Receives National Technology Initiative Fellowship Award

09/13/18

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"The Real Deal" featured Haub Law Professor Bridget Crawford in "Tamir Sapir failed to report $194M from partial sale of 11 Madison: IRS"

09/13/18

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"Scarsdale Inquirer" featured Pace University's President Marvin Krislov in "Lowey discusses college affordability, accessibility"

09/13/18

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"Westchester County Business Journal" featured Pace University students Hansali Tavarez, Brandon Morales and Madison Olavarria in "Pace students awarded State Department scholarships"

09/13/18

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"Playbill" featured Pace University's School of Performing Arts Amy Rogers Schwartzreich and Nedra McClyde in "13 Tips to Nail Your College Audition"

09/12/18

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"Broadway World" featured Pace University's Vanessa J. Herman in "D.C. Area Theaters To Present THE THE BETSY DEVOS CONFIRMATION HEARING"

09/12/18

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"Backstage" featured Pace University's Performing Arts Grant Kretchik and JV Mercanti in "Why You Should Audition for Acting School"

09/12/18

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"Westchester County Business Journal" featured Pace University in "Feeding Westchester kicks off Hunger Action Month"

09/12/18

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"The New York Times" featured Dyson Professor George Picoulas in "He Led a Group of Disloyal New York Democrats. Will It Cost Him His Seat?"

09/12/18

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"Playbill" feature Pace University in "Big 10: The 10 Most Represented Colleges on Broadway in the 2018-2019 Season"

09/11/18

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"Publisher’s Weekly" featured Pace University's Sherman Raskin in "Bidding Adieu to Sherman Raskin"

09/10/18

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"The Educator's Resource" featured Christen Cupples Cooper in "Teaching Outside the Text"

09/10/18

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"Daily Voice" featured Pace University in "CBS Names Pace University Grad As Interim President/CEO After Ouster Of Les Moonves"

09/10/18

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"PressConnects" featured Dyson Professor Jennifer Powell-Lunder in "Hang up the game controller: How to press pause on 'Fortnite' as the school year begins"

09/07/18

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"Vanity Fair" featured Law Professor Mimi Rocah in “Mueller Is Not Going to Go on Rachel Maddow”: The Coming War Over the Special Counsel’s Findings"

09/07/18

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"The Examiner" featured Pace University in "College Students, Administrators Decry Rising Costs at Lowey Forum"

09/07/18

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"Westchester County Business Journal" featured Alexandra Dunn in "Former Pace Law dean Alexandra Dunn tapped for EPA chemicals post"

09/06/18

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Press Release: United Nations Secretary-General Praises Pace University as a Leader in Disarmament Education

09/06/18

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"TurkHaber" featured President Marvin Krislov and Pace University in "Pace University starts its 2018-2019 academic year on September 5, 2018..."

09/06/18

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"The Examiner" featured Pace Law School in "Pace Law School Moves Toward Becoming a Plastics Free Campus"

09/05/18

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"Newsweek" featured Law Professor Mimi Rocah in "Robert Mueller Ignores Rudy Giuliani's Threats to End Trump-Russia Investigation Before Midterms Deadline"

09/05/18

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Press Release: Alexandra Dunn, Former Dean of the Elisabeth Haub School of Law's Environmental Law Programs, Nominated to Lead the Environmental Protection Agency's Chemical Safety Office

09/05/18

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"The Chronicle" (of Zimbabwe) featured student-athlete Andresious Cyprianos in "US-based Byo swimmer targets Olympic Games"

09/05/18

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Press Release: Pace University Welcomes Class of 2022 to Pleasantville in Convocation Ceremony

09/05/18

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"OnStage Blog" featured Pace University in "The Top 25 BFA Musical Theatre Programs for 2018-19"

09/05/18

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"NBC News 4 NY" featured Lubin Professor Larry Chiagouris in "People Burn Nike Shoes After Brand Uses Kaepernick"

09/04/18

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"Forbes" featured Pace President Marvin Krislov's latest piece: "What You Should Know When You Go to College: A University President’s Advice To His Daughter"

09/04/18

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"Saint Lucia News Online" featured Pace University Basketball Player Michael Mann in "St.

09/04/18

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Press Release: Congresswoman Lowey, Pace University President Convene Roundtable on College Affordability and Accessibility

08/30/18

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"Fios 1" featured Pace University in "Congresswoman Hosts Roundtable Discussion at Pace University on Cost of Education"

08/30/18

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"News12" featured Pace University in "Hudson Valley college students discuss paying for college"

08/30/18

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"Vanity Fair" featured Professor Mimi Rocah in "He Can Find A Way To Release Those Taxes: How Andrew Cuomo and the Empire State Cou

08/30/18

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"Total Beauty" featured Professor Christen Cupples Cooper, founding director of the Nutrition and Dietetics Program at Pace in "Wha

08/30/18

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"Westchester Magazine" featured Pace Provost Vanya Quiñones in "The New Face of Pace"

08/29/18

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"Monster" featured Dean Harriet R.

08/29/18

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"White Plains Patch" featured the Elisabeth Haub School of Law in "Pace Law School To End Use of Plastics in Cafeteria"

08/28/18