Media Interviews by a Defendant: Bad Idea (in most cases)
Every defendant, understandably, wants to get their side of the story out, and there is generally no better place to do that then by giving an interview with the media, either on television or as part of a print publication. After all, the media offers an extensive platform to share a narrative, counter accusations, or build public sympathy.
The Karen Read case is well-known throughout the Commonwealth of Massachusetts and beyond. Read has been accused of intentionally killing her boyfriend, police officer John O’Keefe. Prosecutors claim she struck John O'Keefe with her SUV and left him to die in the snow on a January 2022 night after drinking. Read has maintained her innocence, claiming she was framed and O'Keefe was beaten by other police officers inside a Canton, Massachusetts, home before being dumped in its front yard.
The first trial ended in a mistrial. Now, as the special prosecutor prepares for a second trial, he is attempting to subpoena the raw footage of Read’s interviews with the media - Boston Magazine and Dateline - that she gave prior to her trial. These could be, of course, admissions of a party, and if they are admitted into evidence, there is a potential that they could contradict key aspects of her case. This blog post explores why speaking to the media is generally inadvisable for a variety of reasons, although in very limited circumstances, it can be beneficial.
Starting at 7:45 in the Youtube video below, the prosecutor explains to the court why he wants video footage of Karen Read’s interviews with the media prior to trial.
In support of the demand for Read’s interview tapes (and the reporter’s notes), the prosecutor leading the retrial, special prosecutor Hank Brennan, told the court that reporter Gretchen Voss's recordings and notes of three interviews with Read are needed in full. He stated that, “There is a ton of conversation that had been redacted arbitrarily by parties that want to use what's in their best interest but cover up what doesn't help them," and he called Voss "a witness to substantive statements, her statements, admissions, confessions" and "some of the most crucial, damning evidence in this case." In short, Read’s statements are effectively admissions that the prosecutor will attempt to use against her.
Karen Read is far from the only person to give public media interviews prior to a trial. History is replete with examples of defendants who damaged their cases by speaking to the media:
Lance Armstrong: Although not a defendant, Armstrong’s repeated public denials of doping allegations backfired when evidence emerged, destroying his credibility.
Sam Bankman-Fried: The founder of FTX made several media appearances after his indictment, much of which was contradicted by his own statements when he later testified at his trial. Prosecutors used these prior statements both as substantive evidence (i.e. admissions) as well as impeachment evidence when he testified.
What are some of the reasons why giving a media interviews is a bad idea.
Everything You Say Can—and Likely Will—Be Used Against You
A cardinal rule in criminal defense is that anything a defendant says can be used against them in court, and media interviews, particularly in high-profile cases like the Karen Read case, are no exception. Unlike conversations with your attorney, which are protected by attorney-client privilege, statements made to the media are public and even statements to the press that were never used in stores can be, in some states (see below), available to prosecutors. Of course, a defendant will not admit to the charged crime in a media interview. To the contrary, a defendant wishes to her clear name. However, even seemingly innocuous remarks can be twisted out of context to build a narrative that supports the prosecution’s case.
For example:
Inconsistencies: A defendant may inadvertently contradict themselves when speaking under the stress of an interview. Such inconsistencies can be exploited by the prosecution to challenge the defendant’s credibility. For example, in the Karen Read case, prosecutors have expressly stated that they want the transcripts and video to expose various alleged inconsistencies.
Admissions: Even minor admissions as to where a person was or who they were talking to, made unintentionally, can lead to damaging inferences in court.
Body Language and Tone: With respect to filmed interviews, non-verbal cues during an interview can be misinterpreted, creating a lasting negative impression that a prosecutor can use to influence a jury.
Controlling the Media Narrative
One of the biggest misconceptions about speaking to the media is that the defendant can control how their story is told. In reality, once statements are made publicly, they are open to interpretation and manipulation by journalists, editors, and opposing parties. The statements will also be heavily edited by the journalist prior to publication. Headlines are often designed to generate clicks, not to provide nuanced coverage. A single misstep or poorly worded comment can dominate the narrative, regardless of the defendant’s intent.
For example, attempts to explain or rationalize behavior can come across as excuses, leading to public backlash. And expressing frustration with charging decisions can generate headlines stating that the “Defendant believes the legal system is rigged against her.” None of this is helpful. Remember: the media’s primary goal is to attract viewers or readers, not to ensure the defendant gets a fair trial.
Media Interviews Lock a Defendant Into a “Version of Events” that they cannot later change
Every defendant’s story changes while preparing for trial. Every defendant, no matter how innocent, remembers details that they did not remember when first speaking with their attorney or the police. That is human nature. However, once your story is out there, you are stuck with it. Effective criminal defense requires careful planning and consistency. Attorneys craft a defense strategy based on the facts, evidence, and legal standards. When a defendant speaks to the media, they may inadvertently undermine their own legal strategy. Put simply, public statements might lock the defendant into a version of events that is contradicted by new evidence discovered later, leaving little room for strategic adjustments.
Defense attorneys need flexibility, and public interviews often eliminate it.
Are the Notes of Reporters Protected from Discovery?
The question in the Karen Read case currently is whether the prosecutors can obtain the raw footage and notes of the reporters who did the interviews with Karen Read. Obviously, when reporters write articles they do not put the person’s entire interview, unedited, in the article. Likewise, with video interviews, some footage remains on the cutting-room floor. Thus, snippets of the interviews - possessed by the reporter herself - may be non-public, but could offer the prosecution with some relevant, important evidence.
The question is: can the reporters be compelled to provide this evidence if they are subpoenaed? The answer is, as always, it depends. It largely depends on what state is issuing the subpoena for the non-public materials.
Massachusetts Has No Reporter Shield Law
Massachusetts has not adopted statutory protection for journalists, and the Supreme Judicial Court of Massachusetts has also refused to interpret a common law reporter’s privilege under the state or U.S. constitutions. See In Re Roche, 411 N.E.2d 466, 473 (Mass. 1980); Com v. Corsetti, 438 N.E.2d 805 (Mass. 1982). However, some Massachusetts courts have protected reporter’s confidential sources by recognizing a need to balance the interests of journalists with the public’s interest in the free flow of information. See In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); Ayash v. Dana Faber Cancer Inst., 822 N.E.2d 667, 696 (Mass. 2005); In re Pelvic Mesh Gynecare Litigation, 32 Mass. L. Rptr. 304 (Mass. Super. 2014).
New York Does Have a Reporter Shield Law
Many states (approximately 40) do have some type of shield law for reporters. The New York shield law (Civil Rights Law 79-h) provides an absolute privilege for confidential information and a qualified privilege for non-confidential information gathered by “professional” journalists and newscasters. Professional journalists persons who make their livelihood working for a professional news medium (although an amendment was proposed in 2016 and 2017 to expand the definition to include bloggers). The statute defines newspapers as having to be distributed at least once a week, have a “paid circulation,” and a second-class postage permit.
In the Karen Read scenario, the information would most likely be non-confidential (notes and video of what Read told the reporter). Therefore, only a qualified privilege would apply.
Is it ever good to speak to the media?
Yes, it can be. But those exceptions are exceptions and not the rule. Speaking to the media can be beneficial—if it is done strategically, in consultation with experienced legal counsel, and with clear objectives. For example, a controlled press statement may help correct misinformation or respond to a damaging leak. Or, a person who has already previously testified or given his or her complete version of events has much less risk in giving an additional media interview. In such a case, it could be important to get a person’s narrative across to the public.
Dynamis LLP is an elite litigation boutique led by former federal prosecutor Eric Rosen. Dynamis has offices in Boston, New York and Miami. Dynamis handles all manners of disputes, ranging from complex disputes involving crypto to complicated white-collar defense cases. Contact Dynamis today about your case (erosen@dynamisllp.com).
