Steven Sharp, Staff Writer, SSharp@albanylaw.edu
Nassau County Executive Thomas Suozzi initiated a controversial anti-drunken driving campaign in late May. (1) The Nassau police asked news organizations to publish the names and photos of people charged with driving while intoxicated (DWI) over Memorial Day weekend. (2) Some news organizations followed suit, and Suozzi deemed the display “The Wall of Shame.” (3)
Nassau County continues to release the personal information of people charged with drunk driving as an “ongoing initiative.” (4) To date, Nassau County police have arrested 900 drivers since Memorial Day weekend; the county published photos of these drivers. (5) The sole exception precludes photos of drivers, who are under the age of nineteen, from being published in the media. (6)
To be sure, Nassau County is flush with drunk drivers and the legal ramifications have not been successful in preventing the proscribed conduct. Last year, 4,013 drivers were arrested in Nassau County for drunken-driving related offenses, including twenty-two fatal alcohol related accidents. (7) Estimates state that one in ten drivers in Nassau County may be impaired. (8) Thus, Suozzi is hoping that the Wall of Shame “send[s] a message” that “if you’ve been drinking, and you decide to get behind the wheel of a car . . . we’re going to make sure that their friends, neighbors and families know about it.” (9)
Some of the accused cry foul. Unfortunately for these people, no civil remedy is available to them. New York does not recognize a common-law right of privacy. (10) The sole civil remedy for a violation of a right to privacy lies in Civil Rights Law §§ 50, 51, but this limited statutory right of privacy only applies where one uses a living person’s “name, portrait or picture” for advertising or trade purposes “without first having obtained the written consent of such person.” (11)
Now, while Suozzi is not a prosecutor, given the publicity and putative effects of the Wall of Shame, one has to wonder if a zealous, publicity-seeking prosecutor could invoke a similar initiative without violating the New York Lawyer’s Code of Professional Responsibility.
Disciplinary Rule 7-107(A) provides the general rule that a lawyer associated with a matter shall not make a statement outside of court that a reasonable person would expect to be publicly disseminated if the statement has a “substantial likelihood of materially prejudicing an adjudicative proceeding” unless a fairly narrow exception applies. (12) Accordingly, prosecutors have “a special duty to seek justice” and a responsibility “not only to ensure the fairness of the process by which a criminal conviction is attained, but also to avoid the public perception that criminal proceedings are unfair.” (13)
Publishing photos of accused drunk drivers, along with their names and addresses may prevent prospective jurors from being impartial at the outset of the trial and may also interfere with the obligation of jurors to base their verdict solely upon the evidence admitted in the trial.
DR 7-107(B) describes six kinds of statements that a lawyer is ordinarily forbidden to make about a criminal matter because such statements would be “likely to prejudice” the proceeding. (14) For example, a statement is “likely to prejudice” the proceeding when it relates to: “(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; (2) the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person’s refusal or failure to make a statement; (3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty, are prohibited.” (15)
On the other hand, a prosecutor is allowed to state the following: “(a) the identity, age, residence, occupation and family status of the accused; (b) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (c) the fact, time and place of arrest, resistance, pursuit, use of weapons, and a description of physical evidence seized, other than as contained only in a confession, admission, or statement; (d) the identity of investigating and arresting officers or agencies and the length of the investigation.”
While publishing photos of the accused does not appear to violate any disciplinary rule of the code of professional responsibility, one has to wonder why such an abuse of power would not be proscribed by the code? After all, such conduct on the part of the prosecutor taints the potential jury pool and proves to be embarrassing and humiliating for the accused.
1 – Carl MacGowan & Alfonso A. Castillo, DWI ‘Wall of Shame’ to Return, NEWSDAY, May 31, 2008, at A10.
2 – Alfonso A. Castillo, Some Arrested for DWI Decry ‘Wall of Shame’, NEWSDAY.COM, May 29, 2008, http://www.newsday.com/topic/wpix-lidrunk-update0529,0,5041665.story?page=2.
3 – Id.
4 – MacGowan & Castillo, supra note 1.
5 – John Valenti, Nassau to Step Up DWI Enforcement Over Weekend, NEWSDAY.COM, August 29, 2008, available at http://www.nassaupba.org/public/public_interest/Stop-DWI.shtml (last visited Sept. 29, 2008).
6 – Jennifer Sinco Kelleher, Making the Rounds to Prevent DWI-related Accidents, NEWSDAY.COM, July 6, 2008, http://www.newsday.com/news/local/ny-lidwi0706,0,7841085.story.
7 – Joie Tyrrell, Just a Fraction are Ever Caught, NEWSDAY, June 1, 2008, at A06.
8 – Id.
9 – Alfonso A. Castillo, 63 Added to DWI ‘Wall of Shame’, NEWSDAY.COM, June 19, 2008, available at http://www.nassaupba.org/public/public_interest/blotter/63-more-drivers-added.shtml (last visited Sept. 29, 2008).
10 – Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902).
11 – Messenger v. Gruner, 94 N.Y.2d 436, 441 (2000).
12 – N.Y. LAWYER’S CODE OF PROF’L RESPONSIBILITY, DR 7-107(a) (2007).
13 – See NYSBA Prof’l Ethics Comm., Op. 686 (1996).
14 – N.Y. LAWYER’S CODE OF PROF’L RESPONSIBILITY, DR 7-107(b) (2007).
15 – Id.