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
Wisconsin Lawyer
