Written by: Curtis Seal
Editor In-Chief, The American Journal of Trial Advocacy
“Every member of the Duke lacrosse team is innocent. You have all been told some fantastic lies.” Dave Evans, team captain and one of the accused Duke Lacrosse players, spoke those words to the media as he publicly professed his and his teammates’ innocence. As it turned out, Dave Evans was exactly right. Disturbingly, some of those lies came from the District Attorney, an office from which we expect the utmost integrity in fairly participating in the search for justice.
Eleven years later, the infamous Duke lacrosse case serves as a reminder of the corruption that can permeate through the criminal justice system. When prosecutors are unethical and make statements about an ongoing criminal proceeding, the media can sensationalize a story to the extent that someone is considered guilty before ever being charged with a crime.
Disclosure of Exculpatory Evidence
On March 14, 2006, Durham police began investigating allegations of rape surrounding a party at the home of several Duke Lacrosse team members. Hours after the alleged attack, Durham County District Attorney Mike Nifong hired Dr. Brian Meehan to conduct DNA testing on the evidence that was collected. Meehan discovered that the DNA on the rape kit and the accuser’s underwear belonged to at least four unidentified men, none of which were the accused Duke Lacrosse players. Meehan reported his findings to Nifong in person and on the phone before completing his report. Meehan later testified that he and Nifong agreed to limit the report to only what matched the accused players. Nifong stated that he was unaware of any additional information or exculpatory evidence, and would not turn over that existing evidence until ordered to do so by a judge. Despite the contradictory evidence, Nifong had the players indicted for rape.
The American Bar Association Model Rules of Professional Conduct (Model Rules) addresses the disclosure of evidence. Model Rule 3.8(d) makes clear that prosecutors must “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused….” In Brady v. Maryland, the Supreme Court held that a prosecutor’s evidence suppression requested by an accused, in favor of the accused, violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
Prosecutors can be the foundation for justice and inspire confidence in the criminal justice system. However, when prosecutors intentionally hide potential exculpatory evidence, a foundation for injustice is created and confidence in the criminal justice system is lost. By intentionally hiding evidence, Nifong created a foundation for injustice for the Duke Lacrosse players. The Duke Lacrosse case soon became national news and every news outlet in the country was covering the story. With the eyes of the country watching, Nifong made statements to the media that further sensationalized the case. Before any legal action was taken, the accused players were already presumed guilty in the court of public opinion.
Public Statements by Prosecutors
Nifong went to the media several times and gave several public statements about the case. He characterized the alleged rape as “totally abhorrent” and “reprehensible.” He also gave his own personal opinion about what occurred, and even went as far as suggesting that members of the team were guilty. He even analogized the case to a “cross burning,” suggesting that it was a racially motivated crime. In several interviews, Nifong expressed his frustration with the cooperation of the Duke Lacrosse team, and suggested that the lacrosse team adopted a code of silence.
The Model Rules also address public statements made by a prosecutor. Model Rule 3.6 prevents a prosecutor from making extrajudicial statements that he knows or reasonably should know present a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Model Rule 3.8(f) prevents a prosecutor from making extrajudicial statements “that have a substantial likelihood of heightening public condemnation of the accused.”
Public comments by prosecutors can serve a valuable function. First, and most obviously, the public has a right to be informed. A prosecutor is almost always an elected public official, so keeping the public “in the know” about any case’s facts is a prosecutor’s obligation. Secondly, statements by prosecutors may be necessary to either ask for assistance in an ongoing investigation or to keep the public safe from dangers in the community. Lastly, when prosecutors’ public comments are properly curtailed, publicity about ongoing cases has a deterrence effect on future crime.
As seen during the Duke Lacrosse case, a prosecutor’s statements to the media during ongoing criminal proceedings can jeopardize a defendant’s right to a fair trial if those statements suggest guilt in any way—especially in the digital age of information in 2017. Every defendant in a criminal proceeding is presumed innocent, and a prosecutor’s comments that suggest guilt before charges can be fairly brought in a court of law weaken that presumption of innocence. Furthermore, opinionated statements may infringe on a defendant’s Fifth Amendment right to remain silent if the defendant feels it necessary to respond to negative media coverage. In the Duke Lacrosse case, media coverage was almost worldwide, and team captain Dave Evans was compelled to make comments refuting Nifong’s public statements.
There is an obvious fine line that must be walked because prosecutors, like ordinary citizens and the press, have a First Amendment right to free speech. However, the Supreme Court, in Gentile v. State Bar of Nevada addressed what exactly is permissible. The court ruled that lawyers in pending cases are under certain ethical restrictions that ordinary citizens and the press are not under because bar membership is a privilege “burdened with conditions,” and a restriction on free speech is necessary to ensure a defendant’s right to a fair trial.
More than a year later, North Carolina Attorney General Roy Cooper dropped all charges against the Duke Lacrosse players, and declared them innocent. Mike Nifong was disbarred for dishonesty, fraud, deceit, and misrepresentation. He was the first prosecutor in North Carolina disbarred for trial misconduct. Additionally, Nifong served one day in jail for lying about the sharing of the DNA evidence.
Prosecutors are held to a higher standard than any other attorney in our legal system due to the responsibility and public interest that comes with the position. The Duke Lacrosse case is a reminder of what can happen when a prosecutor forgets how important the position is in our criminal justice system. Justice Sutherland may have best articulated the role of the prosecutor in the Supreme Court case of Berger v. United States:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
 Duke Lacrosse Player Calls Rape Charges ‘Lies,’ ABC News (May 15, 2006), http://abcnews.go.com/US/LegalCenter/story?id=1963441.
 Model Rules of Prof’l Conduct r. 3.8(d) (Am. Bar Ass’n 1983).
 373 U.S. 83 (1963).
 Brady, 373 U.S. at 87.
 Model Rules of Prof’l Conduct r. 3.6 (Am. Bar Ass’n 1983).
 Model Rules of Prof’l Conduct r. 3.8(f) (Am. Bar Ass’n 1983).
 U.S. Const. amend. V.
 501 U.S. 1030 (1991).
 Gentile, 501 U.S. at 1066, 1070-75.
 N.C. attorney general: Duke players ‘innocent,’ CNN.com (Apr. 11, 2007), http://www.cnn.com/2007/LAW/04/11/cooper.transcript/index.html?_s=PM:LAW/
 Former Duke Prosecutor Nifong Disbarred, ABC News http://abcnews.go.com/TheLaw/story?id=3285862&page=1.
 295 U.S. 78 (1935).
 Berger, 295 U.S. at 88.