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Vol. 72, No. 12, December
1999 |
Supreme Court Orders
Following a public hearing on Oct. 19, the Wisconsin Supreme
Court has amended SCR 20:3.6 regarding trial publicity and has
denied amending SCR 20:3.8 regarding the special responsibilities
of a prosecutor concerning trial publicity.
Trial
Publicity, Special Responsibilities
of a Prosecutor
In the Matter of the Amendment of Supreme Court Rules: SCR
20:3.6 - Trial Publicity; 20:3.8 - Special Responsibilities
of a Prosecutor
Order 97-06
The court held a public hearing Oct. 19, 1999, on the amended
petition of the Wisconsin Association of Criminal Defense Lawyers
for the amendment of Supreme Court Rule 20:3.6 to limit the restriction
on trial publicity to lawyers participating in the investigation
or litigation of the matter and lawyers associated in a firm
or government agency with such a lawyer and to permit a lawyer
to make a statement a reasonable lawyer would believe necessary
to protect a client from substantial undue prejudicial effect
of publicity not initiated by the lawyer or the lawyer's
client. The amended petition also proposed the amendment of Supreme
Court Rule 20:3.8 to prohibit, with some exceptions, a prosecutor
from making certain extrajudicial comments.
The court has considered the petition, the presentations at
the public hearing, and the material filed with the court in
the matter.
IT IS ORDERED that, effective Jan. 1, 2000, the Supreme Court
Rules are amended as follows:
1.20:3.6(a) of the supreme court rules is amended to read:
20:3.6(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.
2.20:3.6(c) (intro.) of the supreme court rules is amended
to read:
20:3.6(c) (intro.) Notwithstanding paragraphs (a)
and (b)(1-5), a lawyer involved in the investigation or litigation
of a matter may state without elaboration all of the following:
3.20:3.6(c)(1) of the supreme court rules is amended to read:
20:3.6(c)(1) the general nature of the claim or defense
claim, offense or defense involved and, except when prohibited
by law, the identity of the persons involved;
4.20:3.6(c)(3) of the supreme court rules is amended to read:
20:3.6(c)(3) that an investigation of the matter is in
progress, including the general scope of the investigation, the
offense or claim or defense involved and, except when prohibited
by law, the identity of the persons involved;
5.20:3.6(c)(7) (intro.) of the supreme court rules is amended
to read:
20:3.6(c)(7) (intro.) In a criminal case, in addition
to subparagraphs (1) through (6):
6.20:3.6(d) and (e) of the supreme court rules are created
to read:
20:3.6(d) Notwithstanding paragraph (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 information that is necessary to
mitigate the recent adverse publicity.
(e) A lawyer associated in a firm or government agency with
a lawyer subject to paragraph (a) shall not make a statement
that is prohibited by paragraph (a).
7.The COMMENT to 20:3.6 of the supreme court rules is amended
to read:
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.
No body of rules can simultaneously satisfy all interests
of fair trial and all those of free expression. The formula in
this rule is based upon the ABA Model Code of Professional Responsibility
and the ABA Standards Relating to Fair Trial and Free Press,
as amended in 1978.
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.
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.
Paragraph (b) lists 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 deprivation of liberty.
Paragraph (c) 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 (c) 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).
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.
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.
Committee Comment: The committee has substituted the words
"deprivation of liberty" for the word "incarceration."
Supreme Court Comment, 1999: The harm to be avoided in
paragraph (e) is not the "substantial undue prejudicial
effect" of publicity set forth in the ABA Model Rule 3.6(c)
but, consistent with paragraph (a), the "substantial likelihood
of undue prejudicial effect."
IT IS FURTHER ORDERED that the petition, insofar as it proposed
the amendment of SCR 20:3.8, is denied.
IT IS FURTHER ORDERED that notice of this amendment of the
Supreme Court Rules be given by a single publication of a copy
of this order in the official state newspaper and in an official
publication of the State Bar of Wisconsin.
Dated at Madison, Wis., this 9th day of November, 1999
By the court:
Marilyn L. Graves,
Clerk of Court
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