SCR 20:3.6. Trial publicity

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 the lawyer knows or reasonably should know will be

disseminated by means of public communication and will have a

substantial likelihood of materially prejudicing an adjudicative

proceeding in the matter.

(b) A statement referred to in par. (a) ordinarily is likely to have

such an effect when it refers to a civil matter triable to a jury, a criminal

matter, or any other proceeding that could result in deprivation of liberty,

and the statement relates to:

(1) the character, credibility, reputation or criminal record of a

party, suspect in a criminal investigation or witness, or the identity of a

witness, or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in deprivation

of liberty, the possibility of a plea of guilty to the offense or the existence

or contents of any confession, admission, or statement given by a

defendant or suspect or that person's refusal or failure to make a

statement;

(3) the performance or results of any examination or test or the

refusal or failure of a person to submit to an examination or test, or the

identity or nature of physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or

suspect in a criminal case or proceeding that could result in deprivation

of liberty;

(5) information the lawyer knows or reasonably should know is

likely to be inadmissible as evidence in a trial and would if disclosed

create a substantial risk of prejudicing an impartial trial; or

(6) the fact that a defendant has been charged with a crime, unless

there is included therein a statement explaining that the charge is merely

an accusation and that the defendant is presumed innocent until and

unless proven guilty.

ably should know is

likely to be inadmissible as evidence in a trial and would if disclosed

create a substantial risk of prejudicing an impartial trial; or

(6) the fact that a defendant has been charged with a crime, unless

there is included therein a statement explaining that the charge is merely

an accusation and that the defendant is presumed innocent until and

unless proven guilty.

(c) Notwithstanding pars. (a) and (b)(1) through (5), a lawyer may

state:

(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 thereto;

(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; and

(7) in a criminal case, in addition to subs. (1) through (6):

(i) the identity, residence, occupation and family status of

the accused;

(ii) if the accused has not been apprehended, information

necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or

agencies and the length of the investigation.

(d) Notwithstanding par. (a), a lawyer may make a statement that

a reasonable lawyer would believe is required to protect a client from the

substantial likelihood of undue prejudicial effect of recent publicity not

initiated by the lawyer or the lawyer's client. A statement made pursuant

to this paragraph shall be limited to such information as is necessary to

mitigate the recent adverse publicity.

withstanding par. (a), a lawyer may make a statement that

a reasonable lawyer would believe is required to protect a client from the

substantial likelihood of undue prejudicial effect of recent publicity not

initiated by the lawyer or the lawyer's client. A statement made pursuant

to this paragraph shall be limited to such information as is necessary to

mitigate the recent adverse publicity.

(e) No lawyer associated in a firm or government agency with a

lawyer subject to par. (a) shall make a statement prohibited by par. (a).

WISCONSIN COMMITTEE COMMENT

Paragraph (b) contains provisions found in ABA Comment [5] but not contained in the Model

Rule. Because of the addition of paragraph (b), this rule and the Model Rule have differing numbering,

so that care should be used in consulting the ABA Comment.

ABA COMMENT

[1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding

the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of

the information that may be disseminated about a party prior to trial, particularly where trial by jury is

involved. If there were no such limits, the result would be the practical nullification of the protective

effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there

are vital social interests served by the free dissemination of information about events having legal

consequences and about legal proceedings themselves. The public has a right to know about threats to

its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of

judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter

of legal proceedings is often of direct significance in debate and deliberation over questions of public

policy.

oceedings themselves. The public has a right to know about threats to

its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of

judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter

of legal proceedings is often of direct significance in debate and deliberation over questions of public

policy.

[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic

relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c) requires

compliance with such rules.

[3] The Rule sets forth a basic general prohibition against a lawyer's making statements that

the lawyer knows or should know will have a substantial likelihood of materially prejudicing an

adjudicative proceeding. Recognizing that the public value of informed commentary is great and the

likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the

proceeding is small, the Rule applies only to lawyers who are, or who have been involved in the

investigation or litigation of a case, and their associates.

[4] Paragraph (b) identifies specific matters about which a lawyer's statements would not

ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any

event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is not

intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but

statements on other matters may be subject to paragraph (a).

[5] There are, on the other hand, certain subjects that are more likely than not to have a

material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a

jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate

to:

ay make a statement, but

statements on other matters may be subject to paragraph (a).

[5] There are, on the other hand, certain subjects that are more likely than not to have a

material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a

jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate

to:

(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal

investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea

of guilty to the offense or the existence or contents of any confession, admission, or statement given

by a defendant or suspect or that person's refusal or failure to make a statement;

(3) the performance or results of any examination or test or the refusal or failure of a person

to submit to an examination or test, or the identity or nature of physical evidence expected to be

presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or

proceeding that could result in incarceration;

(5) information that the lawyer knows or reasonably should know is likely to be inadmissible

as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial

trial; or

ical evidence expected to be

presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or

proceeding that could result in incarceration;

(5) information that the lawyer knows or reasonably should know is likely to be inadmissible

as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial

trial; or

(6) the fact that a defendant has been charged with a crime, unless there is included therein a

statement explaining that the charge is merely an accusation and that the defendant is presumed

innocent until and unless proven guilty.

[6] Another relevant factor in determining prejudice is the nature of the proceeding involved.

Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive.

Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place

limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different

depending on the type of proceeding.

[7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may

be permissible when they are made in response to statements made publicly by another party, another

party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required

in order to avoid prejudice to the lawyer's client. When prejudicial statements have been publicly made

by others, responsive statements may have the salutary effect of lessening any resulting adverse impact

on the adjudicative proceeding. Such responsive statements should be limited to contain only such

information as is necessary to mitigate undue prejudice created by the statements made by others.

[8] See Rule 3.8(f) for additional duties of prosecutors in connection with extrajudicial

statements about criminal proceedings.