In February, the New Jersey Advisory Committee on Professional Ethics opined that a prosecutor is prohibited from making “extrajudicial statements featuring displays of seized drugs, weapons, or other contraband.” Prosecutors
Such statements violate New Jersey Rules of Professional Conduct 3.6 (Trial Publicity) and 3.8 (Special Responsibilities of a Prosecutor).
The issue on tap: whether exhibiting seized contraband from a criminal investigation to the public was appropriate. The inquirer explained that displaying the seized drugs “would further public awareness” of the ongoing opioid drug epidemic and assist law enforcement in combating the epidemic. He further argued that the 2004 Rules amendments supersede New Jersey Supreme Court precedent. Specifically, that Rule 3.8(f) supersedes Rule 3.6 on this particular issue.
Rule 3.8(f) allows statements that “have a substantial likelihood of heightening public condemnation of the accused when such statements are necessary to inform the public of the nature and extent of the prosecutor’s action and would serve a legitimate law enforcement purpose.”
The Ethics Committee disagreed with the inquirer. The prosecutor’s argument was overbroad, the Ethics Committee opined, and noted that the 2004 amendments dealt with a different scenario than opioid drug trafficking. The Committee cautioned that “[t]here would be very little left of the prohibition against prejudicial extrajudicial statements if mere heightened public awareness of criminal activity was sufficient to justify extrajudicial statements by prosecutors.” While other jurisdictions adopted language to Rule 3.6 that allowed lawyers to state “at the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement”, New Jersey purposely did not retain this language when it adopted Rule 3.6 in 1984.
While acknowledging the danger of the opioid crisis in New Jersey, the Committee was very clear in stating that “[e]xtrajudicial statements featuring displays of seized drugs, weapons, or other contraband, however, do not accord with New Jersey’s Rules of Professional Conduct.
To read the full ethics opinion, click here.
