Presumptively Prejudicial Topics

Presumptively Prejudicial Topics

Rule 3.6(a) bars a participating lawyer from making an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing the proceeding, yet the rule's text never says which subjects reach that level.¹ The official comments close the gap with a list of subjects that are more likely than not to have a material prejudicial effect, particularly when the matter is a civil case triable to a jury, a criminal case, or any proceeding that could result in incarceration.² Nevada's rule, as the Supreme Court reproduced it in Gentile, is built the same way: a statement ordinarily is likely to have the prohibited effect when it concerns such a matter and relates to a listed subject.³

The listed subjects sort into two families, and each defeats the trial's safeguards in its own way. Statements in the first family preview evidence, so the community hears proof that no court has tested and that a court may exclude. The Sheppard Court's warning fits every one of them: excluding evidence in court is “rendered meaningless when news media make it available to the public.”⁴ Statements in the second family attack or label the accused. They work because the media and the public are likely to treat a participating lawyer as an authoritative source with an insider's view of the case.⁵

A listed topic raises the forecast without deciding it. The test remains the one in paragraph (a), so a lawyer who touches a flagged subject still faces the question whether this statement, in its circumstances, carries a substantial likelihood of materially prejudicing the proceeding.⁶ The list also marks danger zones and not the rule's outer edge, since a remark on an unlisted subject can violate paragraph (a) when the circumstances make prejudice substantially likely. On an exam, a listed topic is where the forecast begins, never where it ends.

Evidence-Related Statements

The first family of flagged topics previews proof. In a criminal matter, the comment reaches:

• speculation about a guilty plea, and the existence or contents of a confession, admission, or refusal to speak;
• the performance or results of any examination or test, and a person's refusal or failure to take one;
• the identity or nature of physical evidence expected at trial;
• the identity of a witness and the expected testimony of a party or witness; and
• information the lawyer knows or reasonably should know is likely to be inadmissible.⁷

Each of these lets a lawyer deliver to the jury pool a piece of proof that no objection, cross-examination, or ruling has tested. The publicity in Sheppard v. Maxwell followed the same pattern. The story that Sheppard had refused a lie detector test came directly from police officers and the Coroner. A report that his wife had called him a “Jekyll-Hyde” personality was attributed to a prosecution witness who gave no such testimony. And a “bombshell witness” said to be on tap to describe his “fiery temper” could only have come from the prosecution.⁸

The harm takes three forms, depending on what later happens to the evidence. Some of it may never be admitted, so the announcement hands the pool exactly what the court would have withheld. Some of it reaches the jury only if it survives a challenge, and a lawyer who speaks while admissibility is still disputed undercuts the ruling before it is made; the comment makes this point about seized material whose admissibility is contested.⁹ And some of it may simply be wrong, as the Jekyll-Hyde story was in Sheppard.¹⁰ The speaker's status magnifies all three, because a participating lawyer is likely to be received as an authoritative insider.¹¹

The two statements differ on a single question: does the lawyer tell the public something about proof? The first disclosed two listed topics, a confession and a test refusal, and it came before the suppression ruling, which it undercut in advance. The second disclosed only procedural facts, a category the rule's list of permitted statements includes.¹²

The physical-evidence entry shows how a flagged topic interacts with the public-record permission. The results of a search under a warrant may be a matter of public record, and the permitted statements include information contained in a public record.¹³ Even so, a prosecutor who republishes the description of the seized items can taint the jury pool, especially when admissibility is disputed or the seizure swept in embarrassing material irrelevant to the charges later brought, because the republication draws attention to matter the jurors should not know or consider.¹⁴

Prior press coverage does not clear a flagged topic. When a subject, such as evidence excluded in a criminal case, has already drawn public attention, a lawyer's commentary lowers the risk of prejudice without eliminating it, because the lawyer can renew and intensify the publicity. The sound course is to be circumspect about any matter that is sensitive and likely to be kept from the jury.¹⁵

Character, Guilt, and Charges

The second family of flagged topics works on the audience's view of people and not on proof. The comment lists the character, credibility, reputation, or criminal record of a party, a suspect in a criminal investigation, or a witness; opinions on the guilt or innocence of an accused; and the bare announcement that a defendant has been charged.¹⁷

These topics share a mechanism. Information about a defendant's character, reputation, or record, and expressions of opinion on guilt or innocence, are generally inadmissible at trial, which already makes them objectionable material for public use. They are also likely to shift the weight of public opinion against the defendant.¹⁸ A participating lawyer's voice adds weight, since listeners tend to treat the lawyer as someone who has seen the file.¹⁹

The character entry is the broadest. It covers a party, a suspect, or a witness, so it can apply before any charge has been filed. At trial the jury would hear a witness tested on cross-examination. A lawyer who tells the press that the witness is a liar gives the pool a conclusion that no one has tested.

The same accusation put to the eyewitness on cross-examination in open court is part of the proceeding and falls outside paragraph (a) altogether. The problem lies in where the statement is made. A witness's criminal record also overlaps with the permission to state information contained in a public record, a question the later section on permitted statements takes up; until then, treat a record statement as a cue to check paragraph (b), not as an automatic violation.²⁰

Opinion on guilt or innocence announces the very conclusion the jury is empaneled to reach. The entry runs in both directions, so a prosecutor who says the defendant did it and a defense lawyer who says the client could not have done it are each stating the flagged opinion. An opinion is not evidence, yet it arrives with a lawyer's apparent authority, so the speaker's standing stands in for proof the trial will test.²¹

The fact of a charge is the one entry that carries its own cure. A listener who hears only that a named person has been charged is likely to hear a report of wrongdoing, though the charge is an accusation that no factfinder has tested. The comment therefore flags the bare announcement, and Nevada's version, reproduced in Gentile, shows the cure: the charge may be announced if the statement includes an explanation that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.²²

The pair shows that the explanation cures only the entry it belongs to. Its terms must appear in the statement itself, and it neither neutralizes other flagged content spoken in the same breath nor displaces the paragraph (a) forecast for the statement as a whole.

Gentile v. State Bar of Nevada shows a lawyer touching this family while withholding the evidence-related specifics. At his press conference the lawyer, unlike the police, refused to comment on polygraph tests except to confirm earlier reports that Sanders had not submitted to the police polygraph. He mentioned no confessions and no evidence from searches or test results. And he refused to elaborate on his charge that the other so-called victims were not credible, beyond a general theory that they had been pressured to testify to avoid drug-related legal trouble and that some had asserted claims to collect insurance money.²³ That restraint bears on the forecast and does not change the fact that a listed topic was touched. The later Gentile sections show how the Court treated the discipline imposed.

Prosecutors face a second limit in this family. Beyond Rule 3.6's general constraints, Rule 3.8(f) requires a prosecutor to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”²⁴ Paragraph (a) asks whether a comment will materially prejudice the proceeding, while Rule 3.8(f) asks whether it will heighten condemnation, and a later section develops the prosecutor's duty.