Thursday, August 10, 2023

Gag Orders and Protective Orders – One Affects Free Speech, the Other Does Not

“Objection, Your Honor!” I am not a fan of TV court dramas, but the one thing these programs generally get right is that both sides to a criminal trial may make objections. More often than not, these objections relate to how evidence is provided in court—or whether the “evidence” can even be heard by a jury.

The rules of evidence are highly complex, but they are designed for only one purpose –to make sure that the jury only hears what will allow them to properly make an impartial decision concerning guilt. In order to guarantee a fair trial, the jurors should be hearing that evidence for the first time in court.

The purpose of a protective order is to safeguard both the process and the people involved.  One component of such an order is that the defendant should not attempt to intimidate witnesses or jurors. You would think that this is an unnecessary admonition. Sadly, some people need to hear that.

More important for our purposes is the less frequent requirement that some information that may become evidence should be withheld from the defendant.

If you have ever taken small children to a party, you understand far too well that you never know what’s going to come out of their mouths. One way to limit the potential damage is to not discuss sensitive matters within their hearing. This is a day-to-day example of a protective order. If they haven’t heard something, they can’t repeat it.

Some defendants do not need the admonition to not speak inappropriately. Other defendants have a history of speaking without a filter. In those cases, the prosecutor will ask that some information not be shared with the defendant personally. This part of a protective order is designed to protect the integrity of the jury process and trial. On other words, it is a legitimate attempt to insure that the trial is conducted in court and not in the media.

A defendant retains the right to speak about his or her innocence and to say that the evidence, at trial, will offer vindication. A protective order, then, is not a violation of one’s First Amendment rights to free speech, and the judge may impose penalties, including fines or even imprisonment, for defendants who will not honor the rule of law. In exceptional cases, when the defendant remains intransigent, the judge may take the next step and issue a gag order.

Gag orders severely restrict what a defendant may say prior to trial, beyond weighing in on the evidence. These are orders of last resort because they have the potential to prevent defendants from strenuously affirming their innocence. Due to the severity of the restrictions, issues of the First Amendment right to free speech may arise.

Therefore, the terms “protective order” and “gag order” should not be used interchangeably. You should be wary of anyone who attempts to confuse the two.

Parenthetically, lawyers may also be subject to protective orders and disobedience to those orders may subject the lawyer to additional disciplinary action, including disbarment.

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