Bully Pulpits and the Presumption of Innocence by J Vincent Aprile II - ABA Criminal Justice Magazine Summer 2026

A bully pulpit is a position of prominence and apparent authority that enables an individual to express and advocate an opinion on a question of international, national, regional, or local matter and be listened to. “It’s one of the axioms of political science that a political leader can exert an enormous influence over his society and its people—for better or worse.” Peter Corning, The “Bully Pulpit”: Then and Now, Inst. for the Study of Complex Studies (Mar. 5, 2019).

Bully pulpit is often a reference to the American president’s platform to voice an opinion as if it were the last word on the matter. But many people may have bully pulpits in their specific arenas of prominence. A governor may have a bully pulpit at least in his or her state. Even at a more local level, lesser political officers may have effective bully pulpits.

The alignment of the bully pulpit with the American presidency is not only due to the prominence of that position and its ability to influence public opinion, but also because the term was coined by then-President Theodore Roosevelt.

“For Roosevelt, bully was an adjective meaning ‘excellent’ or ‘first-rate’—not today’s familiar noun bully referring to an abusive meanie. Roosevelt understood the modern presidency’s power of persuasion and recognized that it gave the incumbent the opportunity to exhort, instruct, or inspire.” Bully Pulpit, Merriam-Webster.com (accessed Nov. 20, 2025).

In today’s world, individuals with bully pulpits can enhance their voices through television, radio, social media, newspapers, and any other form of media circulating their opinions. Opinions expressed from a bully pulpit today may be easily spread to all corners of the speakers’ sphere of influence.

Pretrial statements of an accused’s guilt from a bully pulpit is a real-world instance of the logical fallacy of appeal to authority, or perhaps the ad verecundiam fallacy, or appeal to inappropriate authority. This fallacy occurs when pretrial conclusions, such as the accused is guilty, are considered to be true simply because of a supposed expert’s endorsement, even though the expert lacks any real knowledge of the matter. This fallacy is often employed as a persuasion device relying on the status of a person in authority who has no expertise or experience in the subject matter, or by relying on a prominent position that has a blatant bias in the matter. The law should not allow pronouncements from a bully pulpit, an embodiment of a logical fallacy, to undermine an accused’s right to a fair trial.

In 1978, the U.S. Supreme Court noted that “‘[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’” Taylor v. Kentucky, 436 U.S. 478, 483 (1978) (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). “The Coffin Court traced the venerable history of the presumption from Deuteronomy through Roman law, English common law, and the common law of the United States.” Id.

“While use of the particular phrase ‘presumption of innocence’—or any other form of words—may not be constitutionally mandated, the Due Process Clause of the Fourteenth Amendment must be held to safeguard ‘against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.’” Id. at 485–86. In this regard, the Supreme Court “has declared that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Id. at 485. Claims of the accused’s guilt via the bully pulpit are more than official suspicion; they are pronouncements implicitly claiming that, due to the speaker’s position of authority, he or she has insider information that establishes the accused’s guilt.

Those who pontificate from a bully pulpit have a First Amendment right to speak their opinions. Yet, in criminal cases, when a prominent authority declares a charged individual guilty before trial or describes the accused as a “monster” or equivalent word or phrase that brands that individual as the obvious perpetrator of the charged crime, the accused’s upcoming jury trial has been seriously contaminated.

While this constitutional reality should cause those with bully pulpits to refrain from such remarks, over the years, that restraint seems to have diminished as those with bully pulpits appear oblivious of the need for such restraint. Instead, pre-conviction declarations of guilt have become commonplace at all levels of government. It is probably impossible to legally restrict those speaking from bully pulpits from uttering words calculated to put the speaker’s imprimatur on the accused’s guilt. However, it is possible to put a price on those who abuse the bully pulpit in this way.

“To implement the presumption [of innocence], courts must be alert to factors that may undermine the fairness of the factfinding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” Estelle v. Williams, 425 U.S. 501, 503 (1976).

Courts should give serious attention to the prejudicial impact of declarations of guilt hurled from a bully pulpit and their denial of the fair-trial standard, and evaluate this under stricter scrutiny than simply being part of an unfair publicity analysis. The Supreme Court has “recognized that certain practices pose such a threat to the ‘fairness of the factfinding process’ that they must be subjected to ‘close judicial scrutiny.’” Holbrook v. Flynn, 475 U.S. 560, 568 (1986) (quoting Estelle v. Williams, 425 U.S. 501, 503–504 (1976)). In this way, when a person, before trial, is tried and convicted from a true bully pulpit, that reality should have the effect of barring a trial of that accused.

Traditional ways of combatting prejudicial pretrial publicity are less than effective against informal conviction via the bully pulpit. The size of the locale where the alleged crime was committed is of little value in undermining the prejudicial impact of the overwhelming advocacy of the accused’s guilt from the bully pulpit. Pronouncements of unqualified guilt from national or local persons of prominence are more likely to be believed by jurors than inferences from what journalists or other media sources report happened.

In state jurisdictions as well as federal courts, venue changing would be unlikely to find a locale where either a prominent federal or state official’s castigation of the accused would be unknown to the potential jurors. In most instances, the pronouncement from the bully pulpit would be disseminated through all forms of communication, not just by a single newspaper or television station. This would make the prejudiced analysis of marking the accused guilty from the bully pulpit more difficult to evaluate than newspaper or other media coverage.

“Engagement with traditional media sources such as TV, print, and news websites continues to fall, while dependence on social media, video platforms, and online aggregators grows. This is particularly the case in the United States. … Social media news use was sharply up (+6 percentage points).” Nic Newman, Overview and Key Findings of the 2025 Digital News Report, Reuters Inst. (June 17, 2025).

Admittedly, the Supreme Court has recognized that “[a] jury may have … no difficulty in rejecting the opinions of others because they may not be well-founded.” Skilling v. United States, 561 U.S. 358, 383 (2010). However, because of the prominence and authority of the bully pulpit, there is less of a chance that the pronouncement of the accused’s guilt will be perceived by potential jurors as not well-founded. The Supreme Court has frequently said that it is not required that the jurors be totally ignorant of the facts and issues involved. Yet, a claim from a bully pulpit that the accused is guilty is “neither fact” nor an “issue” but only an attempt, whether negligently or intentionally, to deprive the accused of a fair trial and tear the cloak of the presumption of innocence from the accused.

It is well recognized that “when a petit jury has been selected upon improper criteria or has been exposed to prejudicial publicity, we [the Supreme Court] have required reversal of the conviction because the effect of the violation cannot be ascertained.” Vasquez v. Hillery, 474 U.S. 254, 263 (1986) (addressing discrimination in the grand jury and its impact on the subsequent trial).

Long ago, the Supreme Court explained,“[t]he fact that the presumption of innocence is recognized as a presumption of law and is characterized by the civilians as a presumptio juris, demonstrates that it is evidence in favor of the accused. For in all systems of law legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy.” Coffin v. United States, 156 U.S. 432, 460 (1895). Assertions of guilt from bully pulpits are efforts by governmental authorities to exclude or negate defense evidence, i.e., the presumption of innocence, from a criminal accused’s jury trial. The federal Constitution should impose a sanction for such a governmental strategy or even negligence to deprive before trial begins a criminal defendant of the constitutional guarantee of the presumption of innocence.

Customized juror questionnaires, routine voir dire questioning, and even individual sequestered voir dire have little value in assessing the prejudicial impact of the accused having been pronounced guilty or the sentence of death being urged by a prominent governmental personality, clamoring from a bully pulpit. It is difficult to question a juror about a prominent person in authority who claims an accused is guilty without exposing the juror to that claim made by the individual in a position of governmental authority.

Prosecutors are ethically required to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making.” Model Rules of Pro. Conduct r. 3.8(f) (Am. Bar Ass’n 2025) (Special Responsibilities of a Prosecutor).

When the prosecutor of the case is ethically prohibited from public statements implying the accused’s guilt, why should individuals in the executive branch be able to circumvent these restrictions on the action of prosecutors by making public claims of the accused’s guilt of the charges?

Similarly, “[t]he prosecutor should not make, cause to be made, or authorize or condone the making of, a public statement that the prosecutor knows or reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding or heightening public condemnation of the accused,” and “must take care not to imply guilt.” Crim. Just. Standards: The Prosecution Function, Standard 3-1.10(c) (Am. Bar Ass’n, 4th ed. 2017) (Relationship with the Media). Best practices reflect the ethical prohibition.

Yet no significant consequences have been established to prevent or sanction executive branch officials for using their bully pulpits to deprive criminal defendants of their constitutional right to the presumption of innocence. The law seems to overlook either the failure of an executive branch authority to be counseled by the prosecutor on the case to avoid statements even implying guilt or the person speaking from the bully pulpit disregarding the cautions of the prosecution when provided.

This does not mean that those government officials who have bully pulpits must say nothing about a criminal arrest. A government official with a bully pulpit, like a prosecutor, may make statements that inform the public of the nature and extent of the prosecution’s or law enforcement’s actions and serve a legitimate law enforcement purpose. Similarly, like a prosecutor, the occupant of a government bully pulpit may make a public statement explaining why criminal charges have been declined or dismissed but must take care not to imply guilt or otherwise prejudice the interests of victims, witnesses, or subjects of an investigation. This approach reflects the guidance provided prosecutors by Standard 3-1.10(c) (Relationship with the Media). Id.

In many ways, pronouncements of guilt from a bully pulpit constitute “structural error.” “The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial.” Weaver v. Massachusetts, 582 U.S. 286, 294–95 (2017). “Thus, the defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’” Id. at 295. Unlike many structural errors, conviction via the bully pulpit will not be remedied by simply ordering a new trial or delaying a new trial for a lengthy period in violation of an accused’s right to a speedy trial. The only true remedy is to dismiss the charges with prejudice. This is a severe remedy, but it is the only possible remedy. “This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried.” Barker v. Wingo, 407 U.S. 514, 522 (1972) (explaining the remedy of dismissal with prejudice for a denial of a speedy trial). “But such severe remedies are not unique in the application of constitutional standards.” Strunk v. United States, 412 U.S. 434, 439 (1973).

“An error may be ranked structural … if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,” such as the accused’s federal constitutional right to the presumption of innocence. McCoy v. Louisiana, 584 U.S. 414, 427 (2018) (addressing whether a defense counsel may admit the client’s guilt over the accused’s expressed objection). As a structural error, pretrial statements of the accused’s guilt from a bully pulpit may never be classified as harmless error.

The effects of the assertion of the accused’s guilt from a bully pulpit would be immeasurable because a jury would almost certainly be swayed by a prominent governmental official’s pre-trial pronouncement of an accused’s guilt. See McCoy, 412 U.S. at 427–28.

The presumption of evidence, like proof beyond a reasonable doubt, is a bedrock principle of this nation’s criminal justice system, which should not be susceptible to negation or erasure by the powerful voices of governmental officials who have access to bully pulpits. Tampering with an accused’s right to the presumption of innocence by pronouncements from bully pulpits should be met by the most severe remedy—dismissal of the charge with prejudice. No other remedy is capable of undoing the governmental opinion of guilt being shouted from the bully pulpits.

The bully pulpit also may be abused in a separate mode by declaring prior to trial that a criminal defendant is not guilty, or is innocent of the pending charges. This is often in the context, whether stated or implied, that the person in the pulpit has access to evidence that establishes the accused’s innocence that may not be presented at trial. This impacts not only the preemption of innocence, but the constitutional requirement of proof beyond a reasonable doubt by probative evidence presented at trial. When the integrity of the trial is compromised by claims of innocence from a bully pulpit, the prosecution must be directed by the court to announce or stipulate as fact that the only inculpatory evidence the government has will be presented during the trial. This would be one means of countering the claims of innocence voiced from a bully pulpit.

To preserve the integrity of the criminal justice system, prophylactic measures must be taken to sanitize jury trials from executive branch officials with bully pulpits who disregard the presumption of innocence and the burden of proof beyond a reasonable doubt to improperly influence jury verdicts. No longer can the federal and state judicial systems rely on the fairness and morality of those with bully pulpits to refrain from blaring out their pretrial assessments of a criminal defendant’s guilt or innocence in an effort to influence the outcome.