The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to trial judges to minimize harm to trial fairness are toothless. The usual solution has been lawyers’ ethics rules designed to channel their communications with the press, particularly rules focusing on prosecutors.

This piece addresses these concerns, using a recent proposed revision to the American Bar Association Criminal Justice Standards for the Prosecution Function as a jumping off point for the discussion. Those Standards, like most state ethics rules, prohibit prosecutors from making “public statements that the prosecutor reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding.” Drawing on cognitive science, behavioral economics, rumor-transmission studies, and jury research, this article argues that a substantial likelihood of material prejudice to criminal proceedings from prosecutor statements to the press will always be present in high profile cases. Accordingly, the rules generally governing prosecutor dealings with the press, including the latest version of those rules embodied in the proposed Standards, are unrealistic. Better rules are theoretically possible. Nevertheless, this article concludes, such rules are not politically realistic. Accordingly, this piece recommends modest changes to the proposed standards’ commentary to alert prosecutors to the true nature of the risks arising from their contact with the media and recommending prosecutor training and internal and external accountability mechanisms to improve prosecutor performance in this area.

Table of Contents

I. Introduction

II. Information Overload and Its Consequences

A. A Day Spent in Overdrive

B. Consequences of Overdrive: A First Look

1. Affective Consequences

2. Media Structure

3. Sources of Judgment Error

III. The Decline of Deep Thought and of Empathy

A. The Basic Argument

B. Criticisms and Caveats

C. Declining Empathy

1. False Net Rumors and How They Spread

2. Raced Effects

3. Difficulties of Responding

4. Jurors and the Media

IV. Conclusions

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