Can a prosecutor publicly explain why a criminal charge was not filed once the investigation is finished?

Currency note

The Ohio Board of Professional Conduct withdrew this opinion on December 5, 1997, following the amendment of DR 7-107 (effective January 1, 1996). It is no longer current guidance and is indexed here for historical research only. The opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 3.6 on trial publicity and 3.8 on prosecutors) before relying on any specific rule mentioned here.

Plain-English summary

A prosecutor asked whether DR 7-107(A) applied when a prosecuting attorney explains why a criminal charge has not been authorized after a criminal investigation is completed.

The Board quoted DR 7-107(A), under which a lawyer participating in or associated with the investigation of a criminal matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by public communication. It concluded the provision applies to prosecutors involved in investigating a pending criminal matter, but does not apply to completed criminal investigations. The Board therefore concluded a prosecutor is not prohibited from explaining why a charge was not authorized once the investigation is complete, while cautioning prosecutors not to issue statements on investigations of which the public is unaware.

Common questions

Q: Could a prosecutor explain publicly why no charge was filed?

A: Yes, after the investigation was complete. The Board concluded DR 7-107(A) applied to pending investigations but not completed ones, so a prosecutor could explain why a charge was not authorized once the investigation finished.

Q: Were there any limits on that explanation?

A: Yes. The Board cautioned prosecutors not to issue statements on investigations of which the public is unaware.

Background and rules framework

The opinion applies former DR 7-107(A) of the Ohio Code of Professional Responsibility (trial publicity in criminal matters). The current parallels are Ohio Prof. Cond. R. 3.6 (trial publicity) and 3.8 (special responsibilities of a prosecutor), with Model Rules 3.6 and 3.8.

Citations and references

Rules of Professional Conduct:

• Former DR 7-107(A), Ohio Code of Professional Responsibility

See also

• Ohio BPC Opinion 1988-015: Former Public Defender, Now Prosecutor, Appointing a Special Prosecutor
• Ohio BPC Opinion 1988-008: Part-Time Prosecutors and Criminal Defense

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-025.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 88-25
Issued December 16, 1988

[Withdrawn by Board on Dec. 5, 1997 due to amended DR 7-107, eff. Jan. 1, 1996]

SYLLABUS: Under DR 7-107(A), a lawyer who is participating in or associated with an investigation of a criminal matter shall not make any statements regarding the investigation that a reasonable person would expect to be disseminated by means of public communication. Completed criminal investigations should not be included in that restriction. Therefore, DR 7-107(A) does not preclude a prosecuting attorney from explaining why a criminal charge has not been authorized when a criminal investigation has been completed.

OPINION: We have before us your request for an advisory opinion on whether DR 7-107(A) of the Code of Professional Responsibility applies to a prosecuting attorney explaining why a criminal charge has not been authorized upon completion of a criminal investigation.

DR 7-107(A) states that "[a] lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication... ." This Code provision applies to prosecutors who are participating in or are associated with investigating a pending criminal matter. However, it is our opinion that DR 7-107(A) does not apply to completed criminal investigations. Therefore, a prosecutor is not prohibited from explaining why a criminal charge has not been authorized once the criminal investigation has been completed. We do however, caution prosecutors not to issue statements on investigations of which the public is unaware.

In conclusion, it is our opinion and you are so advised that a prosecutor is subject to DR 7-107(A) in pending matters, but that the Rule does not apply to completed criminal investigations. A prosecutor is, therefore, permitted to explain why a criminal charge has not been authorized upon completion of the criminal investigation.

This is an informal, non-binding advisory opinion based upon the facts as presented and limited to questions arising under the Code of Professional Responsibility.