Judicial/Attorney Comment on Cases

Both judges and lawyers face restrictions as to what they can say publicly about a case during the course of its litigation.

Judicial comment

What a judge may say, or more correctly what a judge may not say, about a particular case is spelled out in Canon 2 of the Code of Judicial Conduct, Rule 2.10 (A).  ďA judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing."

The judge shall impose similar restrictions on court personnel.

The judge remains tied to these restrictions even while the case is under appeal.

The restrictions do not prohibit a judge from answering a reporter's question about court procedures (such as how a jury is selected, what's a motion in limine, etc.), but a reporter shouldn't expect the judge to speak to the credibility of any witness or performance of duties by one of the case's attorneys or the likely outcome of the case.

Attorney comment

Attorneys also have their speech restricted, under Rule 3.6 of the Rules of Professional Conduct. A lawyer is prohibited from making a statement that he/she reasonably should know will be publicly disseminated and will have a "substantial likelihood of materially prejudicing" the case.

The Rules of Professional Conduct does allow the lawyer or a prosecutor to explain the civil claim or criminal charge or defense against the claim or charge involved in the case; talk about information in the public record; categorize the outcome of a hearing or explain what the next step will be; request public assistance in obtaining evidence and information helpful to the case; or warn of danger.

In criminal cases, the lawyer and prosecutor also can disseminate information as to the identity, residence, occupation and family status of the accused; information necessary to aid in apprehending a suspect; information concerning the arrest of a suspect; the identity of investigating and arresting officers and the length of an investigation.

Overriding the initial restriction, a lawyer may make a statement that the lawyer reasonably believes is necessary to protect the client from the substantial undue prejudicial effect of publicity not initiated by the lawyer or client.

Prosecutors also must comply with the requirements of Rule 3.8, which includes an admonishment not to make extrajudicial statements that would have a substantial likelihood "of heightening public condemnation of the accused." The prosecutor also must take reasonable care that the prosecutor's staff and law enforcement personnel also refrain from making statements that the prosecutor would be prohibited from making under Rule 3.6.