Can prosecutors comment on defendant guilt at press conferences? Leavitt v. OPC Explained

In Leavitt v. Office of Professional Conduct, the Utah Supreme Court addressed the boundaries of prosecutorial commentary during press conferences, affirming that even elected prosecutors must carefully navigate Rule 3.6’s restrictions on extrajudicial statements.

Background and Facts

David Leavitt, serving as Utah County Attorney, prosecuted Jerrod Baum for the brutal murder of two teenagers. When deciding to seek the death penalty—the first such decision by his office in nearly forty years—Leavitt held a press conference to explain his reasoning and promote transparency. During the conference, Leavitt made several problematic statements: he characterized Baum as “the sort of individual from whom society ought to be protected,” vouched for the State’s witness credibility, and stated his belief that Baum committed the murders “based on a lot of evidence that the jury will never hear.”

Key Legal Issues

The central issue was whether Leavitt’s statements violated Rule 3.6, which prohibits lawyers from making extrajudicial statements they know or reasonably should know have a substantial likelihood of materially prejudicing an adjudicative proceeding. The court also addressed the appropriate sanction for such violations by elected prosecutors.

Court’s Analysis and Holding

The Utah Supreme Court applied the substantial evidence standard to review factual findings and correctness for legal interpretations. The court found that Leavitt’s comments on Baum’s character, witness credibility, and guilt fell squarely within Rule 3.6 comment 5’s categories of statements “more likely than not to have a material prejudicial effect.” Given the high-profile nature of the case, Leavitt’s position as county attorney, and the live-streamed format, the court concluded Leavitt reasonably should have known these statements would prejudice the proceedings. The court affirmed the public reprimand, finding Leavitt acted at least negligently and caused interference with the criminal proceedings.

Practice Implications

This decision reinforces that prosecutorial transparency must be balanced against defendants’ due process rights. Elected prosecutors face particular scrutiny because their statements carry governmental authority and are “especially persuasive in the public’s eye.” The court emphasized that prosecutors have duties “that rise above those of privately employed attorneys,” including protecting the presumption of innocence and avoiding jury pool contamination. When making public announcements about prosecutorial decisions, attorneys must carefully script their remarks and avoid the specific categories identified in Rule 3.6’s commentary.