Sunday, December 24, 2006


When I was in my early teens my father wrote a letter to the editor of the local weekly newspaper criticizing a report about a local businessman who had been charged in another state with passing a bad check. My father complained that the major newspapers were unlikely to run the story and that it was unfair to give credence to the charges and injure the reputation of the resident until he had been found guilty. The newspaper responded, as one would suspect, about the freedom of the press and the right of the public to know. The charges were eventually dismissed as a case of mistaken identity (and coincidentally, my father became the editor of that same newspaper several years later.)

No one can dispute the right of the newspaper to run that story under the First Amendment. But I had the privilege of being a friend to the late, great Fred Friendly, (former president of CBS News and creator with Edward R. Murrow of See It Now), and he often said:"There is a difference between what you have a right to say and the right thing to say." Which brings me to the now infamous Duke Case. The district attorney in that case may be guilty of other improprieties (N.Y. Times 11/24/06), but I would like to focus on his public pronouncements regarding the case.

In this day and age, it is unlikely, even if the mainstream media chose to institute some self-restraints in publishing criminal charges, that they would not find their way to the public through the Internet. Not so, however, for prosecutors who choose to hold press conferences about indictments. Those who do so forever stigmatize the named defendants, even if the charges are eventually dropped or the defendants are acquitted. Some restraints are imposed upon prosecutors, but they are concerned more with protecting the defendant's right to a fair trial rather than his reputation.

There may be some circumstances in which the publication of charges are in the public interest, such as the apprehension of a serial murderer or rapist who has created fear in a given community. But most announcements by a prosecutor do not serve that function. The defendants in the Duke case may or may not be guilty of some criminal activity. The charges against them may have been made public even absent the pronouncements of the district attorney, but his actions most assuredly guaranteed it.

If these young men are guilty, then the damage to their reputations will have been well-deserved, but if they are not, they will never escape the stigma that has been imposed upon them. That may be the unfortunate and inevitable outcome of our judicial system, but prosecutors would serve the system better by exercising greater restraint in announcing charges and identifying those charged. The time to punish defendants is after they have been convicted not when and merely because they have been charged.


AJF said...

Mr. Sarokin:

I am a graduate journalism student in Toronto. I'm writing a paper about the ethics of identifying the accused in stories about criminal charges.

In this post, you indicate that the responsibility to protect the identities of the accused lies chiefly with the prosecutors.

Do you believe, then, that it's not only legally permissible for the media to report the identities of the accused -- but desirable? By publishing names, media outlets keep the justice system open and public.

While the human toll is certainly regrettable, the practice of publishing identities from the moment charges are laid promotes public scrutiny and understanding of the administration of justice.

Do you agree? Do you think journalists should follow certain ethical guidelines or standards when they report on stories about those accused of crimes? What might those be?

H. Lee Sarokin said...

Freedom of speech prohibits barring the media from publishing the names of persons accused of crimes. My criticism of the prosecution is the extent to which the evidence against the accused is publicized, as opposed to merely disclosing the charges. Of course, there is nothing to stop the media from adopting its own guidelines. To me the problem is epitomized by the practice of not naming the victim of rape but disclosing the name of the alleged rapist. If that person is innocent, who has suffered the most from the publicity---the victim (if the name were to be disclosed)or the innocent person? You might want to check about the practice in Great Britain. I believe that their law prohibits identifying the accused until the time of trial.