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Criminal Procedure

Pace Law Faculty Publications

2016

Duty

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The Prosecutor’S Duty Of Silence, Bennett L. Gershman Jan 2016

The Prosecutor’S Duty Of Silence, Bennett L. Gershman

Pace Law Faculty Publications

Prosecutors enjoy broad opportunities to communicate with the public outside the courtroom. Justice Holmes’s famous dictum -- “The theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print” – is just that – a “theory.” The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher “special” duty to serve justice rather than a private client. And public statements ...