到檢察官的言論自由，但就像美國聯邦最高法院在
Garcetti v. Ceballos
案398中強調，公務機關的長官(Public employer)可以限制公務員(employee)必須按照公務員的公務義務去發表言論。因此，如果檢察官的 發言是依其職務而為，他們就無法像其他人一樣享有完全的憲法第一修正 案的權利。因此檢察官發言時必須展現出已經對案件有所掌控，扛下其追 求正義的責任，使社會大眾忘記其個人色彩399。
第9款 美國 Code of Professional Responsibility
在採行對抗主義的美國刑事訴訟當中，律師對於和委託人之間所交流 的訊息應依其保密的倫理責任而不對外公開。美國律師公會頒布的職業責 任法(Code of Professional Responsibility)中，懲戒規則(Disciplinary Rules)DR 4-101400即有關於律師與委託人間的保密規定。美國律師公會、
398 126 S.Ct. 1951, (2006).
399 Levenson, High-profile Prosecutors & High-profile Conflicts, 39 Loy. L.A. L. Rev.
1237, 1253-55 (2006).
400 DR 4-101 of Code of Professional Responsibility: (Preservation of Confidences and Secrets of a Client)
(A) "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
(C) A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent the crime.
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
‧
或特別的政府機構。檢察官代表的是「整個社會」(society as a whole)，任何以其地位所為的決定都必須符合公共利益。就如美國聯邦最高法院在
Berger v. United States
案402中所說的：「檢察官在刑事追訴的利益並不 在於必須贏得勝利，而在於正義的維持。」然而，公眾在作決定時，並無 法如同一般的委託人一樣。對此，職業責任法的倫理規範(Ethical Considerations)EC 7-13403即說明，檢察官為國家公益的代表，他的職責
(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.
401 Rule 1.6 of Model Rules of Professional Conduct : (Confidentiality of Information) (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.
402 “The prosecutor’s interest in a criminal prosecution is not that [he] shall win a case, but that justice shall be done.” 295 U.S. 78, 88 (1935).
403 EC 7-13 : “The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts. With respect to evidence
‧
and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice: the prosecutor should make timely disclosure to the defense of available evidence, known to him, that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecution's case or aid the accused.”
404 “Defense counsel’s legitimate and necessary goal is to achieve the best possible result for his client. His loyalty is to the individual client alone. The prosecutor, however, enters the courtroom to speak for the People, and not just some of the People.
The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of ‘the People’ includes the Defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but give over to the prosecutor the authority to seek a just result in their name.” Lindsey v. State, 725 P.2d 649, 660 (WY 1986), quoting On Prosecutorial Ethics, 12 Hastings Const. L.Q. 537-539 (1986).
405 DR 7-107: (trial publicity)
(A) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(B) Notwithstanding division (A) of this rule, a lawyer may state any of the following:
(1) The claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) Information contained in a public record;
(3) That an investigation of a matter is in progress;
(4) The scheduling or result of any step in litigation;
(5) A request for assistance in obtaining evidence and information necessary to obtain evidence;
(6) A warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;
(7) In a criminal case, in addition to divisions (B)(1) to (6) of this rule, any of the following:
(a) The identity, residence, occupation, and family status of the accused;
(b) If the accused has not been apprehended, information necessary to aid in
‧ 國
立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
145
3.6 皆原則禁止檢察官發表司法程序外的言論，避免有侵害刑事程序的實 質可能性，這兩個規定其實都意味著檢察官在一定的條件下，可以在一個 尚在進行的程序中公開揭露資訊。檢察官雖然可以為了追訴之目的而揭露 所承辦案件之資訊，然而並不可以其他的目的來揭露資訊。如果基於其他 的目的而揭露資訊，就必須得到長官的同意406。