EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, July 29, 2008

The Last 48?: District Attorney General Sends Letter To Memphis Police Department Asking That It Not Renew Its Contract With A&E's "The First 48"

The A&E show "The First 48" summarizes its premise in its title voiceover: "For homicide detectives, the clock starts ticking the moment they are called. Their chance of solving a case is cut in half if they don't get a lead in the first 48 [Hours]."  Each episode tracks a homicide or homicides, showing how detectives use forensic evidence, witness interviews, and other advanced detective skills to identify suspects. The way that the show is able to do this is that it was given unprecedented access by several police departments to crime scenes, interrogations, detectives' opinions and and other details that typically are revealed in a courtroom.  The show has followed police departments in many cities, ranging from Miami to Phoenix and has now sparked its first controversy in Memphis, with some claiming that the courtroom is where this information should remain.

Recently, the show did an episode on Jessie Dotson, which was punctuated by his tearful confession to shooting four adults and beating and stabbing five children.  There were, however, problems with this confession.  First, the confession, which was recorded and edited by A&E hasn't yet been ruled admissible in Dotson's pending trial, meaning that the jury pool could easily be tainted by it if it is later ruled inadmissible at trial.  And inadmissibility (and extreme prejudice) seems a real possibility based upon the fact that the video was allegedly edited and taken out of sequence, with A&E destroying whatever video they don't use.

This, however, was not the problem which led District Attorney General Bill Gibbons to send a letter to Memphis Police Director Larry Godwin asking that he not renew the department's contract with the show.  Instead, the letter was the result of the Rules of Professional Conduct promulgated by the Supreme Court of Tennessee.  Pursuant to Rule 3.6(a), "[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding."

Prosecutors, however, not only have to keep their own mouths shut, but also must ensure that mum's the word for everyone around them.  Specifically, Rule 3.8(e)(2), states that the prosecutor in a criminal matter shall "discourage investigators, law enforcement personnel, and other persons assisting or associated with the prosecutor in a criminal matter from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6."  Ostensibly, this Rule is violated by the Memphis Police Department's cooperation with "The First 48," so how are things likely to end?

Well, it initially appeared that they might end amicably, after Godwin decided in May not to renew the contract with "The First 48" because of how disruptive the taping is to the department.  However, he said recently that he is reconsidering the decision because the show casts detectives in a favorable light.  It seems to me, though, that the show violates the Rules promulgated by the Supreme Court of Tennessee and thus shines a negative light on the Memphis Police Department.  Hopefully, then, the Memphis Police Department and other police departments will discontinue their affiliation with the show or at least, as suggested by Gibbons, reach an agreement that "The First 48" will not air its episodes until after cases have been disposed



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In your post you state that the show violates the rules promulgated by the Supreme Court of Tennessee. I understand how the Supreme Court of Tennessee has the power to issue rules for attorneys. I cannot, however, understand how the Supreme Court of Tennessee has any jurisdiction over police departments. In my opinion the letter from the prosecutor to the police department was to discourage the police department from renewing the contract. He therefore did what he was supposed to do under the rule. However, the police department is under no compunction to follow the prosecutor's request.

Posted by: Michael Terry | Jul 31, 2008 3:33:22 PM

In looking over my post, I believe that you are right that I overstated my point about the show violating the rules. The rules prompt the prosecutor to discourage the behavior of the MPD, but the MPD's behavior itself doesn't violate the rules. I still think that the show shoudln't air episodes until after cases are completed based upon the possible tainting of the jury pool, but the Supreme Court rules don't technically proscribe the current course of conduct.

Posted by: Colin Miller | Jul 31, 2008 8:44:39 PM

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