Court Ordered Criminal Defense Lawyer to Take Down YouTube Video of Client

People v. Fulmer, --- N.E.2d ---, 2013 IL App (4th) 120747, 2013 WL 662250 (Ill.App. 4 Dist. February 25, 2013) A criminal defense attorney believed that video the state's attorney gave him prior to a preliminary hearing showed police engaged in improper conduct toward his client during an undercover drug operation. After the defense attorney copied the video and put it on YouTube and Facebook (with commentary including "cops and task force planting drugs"), the court found the attorney violated the Illinois Supreme Court rules concerning the public disclosure of evidence, and ordered him to take the content down.

The attorney appealed the order to the Illinois Appellate Court, arguing that the procedural rule under which the lower court barred the video did not apply in the circumstances.

The appellate court affirmed the lower court's order that the content be taken offline.

Under Illinois Supreme Court Rule 415(c), "any materials furnished [by the State] to an attorney . . . shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to other such terms and conditions as the court may provide." The attorney argued that Rule 415's restrictions had not yet been triggered, as there had not been a preliminary hearing. Rule 411 provides that the relevant rules (including Rule 415) "shall not be operative prior to or in the course of any preliminary hearing." Since he got the materials prior to the preliminary hearing, the attorney argued their public distribution was permissible.

The court rejected the attorney's arguments. Among other things, it looked to the importance of nondisclosure to the administration of criminal justice. It agreed with the lower court's finding that it would be "unreasonable to have the State provide discovery prior to preliminary hearing and then let the defense use that as they may, for whatever purpose, including placing it . . . on YouTube, where it could be reviewed by anyone, particularly when you have a . . . confidential source. That seems to be inconsistent with the ends of justice."

The record was clear that the attorney received the video prior to the preliminary hearing. But it was not clear as to whether he posted it before or after that hearing. The court found the distinction immaterial -- it emphasized that regardless of when the attorney posted the video, Rule 415 still applied.

See also: Robbery conviction overturned because prosecutor played YouTube video during closing argument