The Basic Prohibition

Judicial Comment on Pending Cases

The Basic Prohibition

Rule 2.10(A) of the Model Code of Judicial Conduct bars a judge from speaking about a case in two ways. A 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, and a judge shall not make any nonpublic statement that might substantially interfere with a fair trial or hearing.¹

Three features of that sentence do most of the work. The duty falls on the judge personally, so it follows the judge out of the courtroom. The matter must be pending or impending "in any court," so the prohibition is not confined to cases on the judge's own docket. And the word "or" splits the rule into two prohibitions with different effect standards. The public prong asks whether the statement might reasonably be expected to affect the outcome or impair fairness, and the nonpublic prong asks whether it might substantially interfere with a fair trial or hearing. What counts as pending or impending is the subject of the next section.

The rule exists because the real and perceived fairness of judicial proceedings can be affected by what a judge says or does outside the courtroom. That is why judges are subject to the overarching directive that they act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.² When a judge shares views on a pending case, the prevailing concern is that the judge will appear to be taking sides prematurely, or to be overly invested in the proceeding, to the detriment of real and perceived impartiality.³ Discipline shows the concern at work. Judges have been disciplined for telling reporters that a party's discovery request deserved criticism, and for holding "off the record" conversations with a reporter in the midst of a murder trial.⁴ Both examples return below, one under each prong.

Public Statements

The first prong bars 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.⁵ The phrase "might reasonably be expected" makes the test objective and predictive. It is objective because it measures the statement by how a reasonable observer would expect it to operate. It is predictive because it looks to the statement's likely effect on the proceeding. Two questions never enter the analysis: whether the judge meant to influence the result, and whether any harm actually followed. A judge who sincerely intends to stay fair still violates the prong if the remark could reasonably be expected to affect fairness, and a remark that changed no ruling violates it just the same. Both points follow from the wording, which turns on what might be expected and not on the judge's state of mind or on what happened afterward.

The standard fits the injury the rule guards against. A remark that takes a position on a contested issue can create the appearance of premature side-taking the moment it is heard, whatever the judge privately meant.⁶ A test keyed to intent or to proven harm would miss that injury. Asking what the statement might reasonably be expected to do lets the rule operate before the damage is done.

The discipline cases show the prong applied. Judges have been disciplined for making comments to reporters criticizing a party's discovery request.⁷ A judge who calls one side's discovery request a transparent fishing expedition has commented on a contested step in a case that is still undecided, and a listener can reasonably infer that the judge has already formed a view of that party's position. The prong also does not depend on whose docket the case sits on. Because the rule reaches matters pending or impending in any court, a judge who offers a public opinion on how a criminal case in another state should come out makes the kind of statement the prong targets, even with no connection to that case.⁸

The difference between the violations and the safe remarks is the link between the statement and a particular live matter. The closer a remark comes to taking a position on how a pending case should be handled or decided, the easier it is to predict an effect on that case. A statement about the law in the abstract, or about the logistics of a hearing, supports no such prediction.

Exam fact patterns often add a disclaimer, such as a judge who criticizes a party's filing to the press and then adds that of course the case will be decided fairly. The disclaimer speaks to the judge's intent, and intent is not what the first prong measures. The remark remains a violation if it might reasonably be expected to impair fairness.

Nonpublic Statements

The second prong forbids a judge to make "any nonpublic statement that might substantially interfere with a fair trial or hearing."¹⁰ Set beside the first prong, the wording differs in two ways. The standard rises, because the nonpublic prong requires that the statement might substantially interfere, while the public prong is satisfied by a statement that might reasonably be expected to affect the outcome or impair fairness. And the object narrows, from the outcome or fairness of a pending or impending matter to the fairness of the trial or hearing itself. A remark that would be forbidden if made publicly may therefore escape the second prong when made privately, provided it cannot substantially interfere with a fair trial or hearing.

The label "nonpublic" is not a safe harbor, though. Judges have been disciplined for holding "off the record" conversations with a reporter in the midst of a murder trial.¹¹ A conversation with a reporter differs from a private word with a colleague, because a reporter's work is to pass information along, and a trial in progress is a proceeding where the judge's perceived impartiality matters most. The concern behind such discipline is the same one that drives the public prong: a judge who shares views on a pending case can appear to be taking sides prematurely or to be overly invested in the proceeding.¹² The judge's own description of the conversation as off the record does not decide the question.

The two scenes differ in audience and in subject. The reporter is a channel to the public and the subject is a trial in progress, so the second prong is engaged. The colleague is not a conduit to the public and the subject is workload, so nothing in the exchange threatens any party's trial or hearing. An exam stem that calls a conversation private or off the record has therefore settled nothing in either direction. The analysis asks who heard the remark, what it said about a live matter, and whether it might substantially interfere with a fair trial or hearing.