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Destigmatizing the Innocent Defendant: Rehabilitating Reputation After an Assault Under Color of Law

NCJ Number
Criminal Law Bulletin Volume: 28 Issue: 2 Dated: (March-April 1992) Pages: 116-136
H M Friedman
Date Published
21 pages
As a means of destigmatizing a defendant who has been acquitted, this article calls for a new jurisprudence of reputation.
The operative realities of the current criminal justice system facilitate arbitrary impairment of a defendant's reputation by government. The mass media report widely on prosecutors' statements regarding arrests and upcoming trials. Prosecutors' access to the media, coupled with public interest in crime, sets the stage for reputational injury. The publicity that often surrounds investigations and arrests impairs reputation before any hearing is held. Prosecutorial domination of the grand jury process has substantially reduced the role of the grand jury in the protection of the innocent. Extended criminal trials often severely injure the defendant's reputation, even if there is ultimately an acquittal. The author proposes a new jurisprudence of reputation that places two obligations on the government when a defendant is acquitted. First, when a person who has been officially and publicly charged with a crime is acquitted or has charges dropped, prosecutors should be precluded from making contemporaneous public statements that suggest the defendant is guilty of the crime although it was not proven to the court. The government should also have an affirmative duty to remedy the injury to reputation caused by the public allegations of criminality. 85 footnotes


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