Extrajudicial Statements

Rule 3.8(f) governs a prosecutor’s public speech with a ban, an exception, and a duty of supervision, all packed into one sentence. The prosecutor must refrain from extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. The ban yields for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose. And the prosecutor must exercise reasonable care to prevent investigators, law enforcement personnel, employees, and others assisting or associated with the prosecutor in the case from making an extrajudicial statement that the prosecutor could not make under Rule 3.6 or this Rule.¹

Rule 3.6 supplies the baseline. It directs every lawyer in a matter to refrain from an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.² Prosecutors carry additional restrictions on top of it: they must refrain from statements that heighten public condemnation of the accused, and they must exercise reasonable care to prevent prejudicial statements by law enforcement.³ The subsections below take the ban, the exception, and the supervisory duty in that order.

Prejudicial Public Comments

The ban in Rule 3.8(f) turns on the likely effect of a comment on public opinion about the accused. A prosecutor must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”⁴ “Extrajudicial” means outside the courtroom and the formal record, so the ban reaches interviews, press conferences, and statements to reporters. Because the standard is likelihood, a prosecutor can violate it before any juror has been affected. Rule 3.6 asks every lawyer a different question: whether the statement will likely prejudice the proceeding materially. Paragraph (f) leaves that rule in place and adds a stricter limit for prosecutors.⁵

The comments that fail most readily portray the accused in a bad light. Information about a defendant’s character, reputation, or criminal record, and opinions on guilt or innocence, are generally inadmissible at trial. Publicizing them exploits material the evidence rules keep from the factfinder, and it is likely to shift the weight of public opinion against the defendant.⁶ Jurors come from that same public. Rule 3.6 accordingly treats as presumptively harmful comments on the credibility or reputation of a defendant or witness, speculation about a guilty plea, statements about the existence or contents of a confession, reports of the performance or results of an examination or test (or a person’s refusal to take one), and opinions on guilt or innocence. Each of these is likely to undermine the fairness and integrity of a criminal trial.⁷

Condemnation also injures the accused outside the courtroom. Beyond any effect on a criminal proceeding, a prosecutor’s unnecessarily condemnatory statements about a person cause immediate and lasting harm.⁸ That harm arises whether or not a trial ever follows.

Defense counsel work under a looser limit. Rule 3.6(c) lets a lawyer, with criminal defense lawyers particularly in mind, respond publicly on a client’s behalf to alleviate the prejudice created by press or other media statements about that client. Prosecutors get less leeway, because Rule 3.8(f) constrains them to avoid public statements that heighten condemnation of the accused.⁹ Paragraph (f) contains no responsive-statement allowance. Its one carve-out is the exception for statements that are necessary to inform the public and that serve a legitimate law enforcement purpose, which the next subsection takes up.¹⁰

Hypothetical Illustration

At a press conference after charging a local businessman with fraud, a prosecutor tells reporters that he cheated his investors on purpose and “ought to be behind bars.” She announces no danger to the public and no next step in the case. The remarks give an opinion on his guilt and a view of his character, and nothing in them tells the public what the office has done. They have a substantial likelihood of heightening public condemnation, so she is exposed to discipline.

In another county, a prosecutor charges a contractor with the same offense. A reporter asks about the case. He says that a charge has been filed, gives the date of the first court appearance, and refers further questions to the public docket. He offers no view of the contractor’s character, record, or guilt. A bare statement of the case’s status does not carry a substantial likelihood of heightening condemnation, so the ban is not breached.

Both prosecutors spoke publicly about a pending case, so speaking is not the violation. What separates them is what each statement was likely to do to the public’s view of the accused.

Exam fact patterns often give the prosecutor a sympathetic reason to speak. Test the remark, not the reason. Nothing in the text of Rule 3.8(f) turns on whether the story is already public or whether the prosecutor believes the remark is true. The ban asks about the comment’s likely effect on public condemnation, and the only excuse is the exception in the next subsection.¹¹

Permitted Law Enforcement Statements

The ban carries one exception, and its wording decides how far the ban reaches. Rule 3.8(f) excuses “statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose.”¹³ The two requirements are joined by “and,” so a statement qualifies only if it meets both. A statement that meets one and misses the other stays under the ban. The exception also speaks of statements, so a prosecutor’s remarks are screened one at a time.

Each requirement does separate work. Necessity limits how much the prosecutor may say: enough for the public to understand the “nature and extent” of the action, such as the charges filed and any danger they reveal, and no more. The legitimate-purpose requirement limits why the prosecutor speaks: the statement must serve law enforcement, as a warning that lets people avoid a hazard does. A genuine warning can still fail the necessity test when it travels with material the public does not need. The two requirements together keep the exception from swallowing the ban. If the exception covered whatever a prosecutor chose to say at a press conference, any condemnatory remark could be called informing the public, and the ban would have nothing left to prohibit.

Because the screen runs statement by statement, a protected warning gives no cover to the remarks that follow it. Each later remark must meet both requirements on its own, and a remark that only describes the accused in unflattering terms meets neither.

The two press conferences share a warning, so the hinge lies in what each remark contributes. A statement that tells the public what the office did or how to avoid a danger can fit the exception. A statement that only colors the public’s view of the accused cannot.

An exam fact pattern will often supply a sympathetic reason for the extra remark: the public has a right to know, the story is already out, or the prosecutor believes the remark is true. None of those reasons appears in the exception. Ask only whether the statement was necessary to inform the public of the nature and extent of the action and whether it served a legitimate law enforcement purpose.

The exception also marks the edge of the third duty, which reaches only statements the prosecutor would be prohibited from making under this Rule.¹⁴

Controlling Associated Personnel

The third duty in paragraph (f) extends the prosecutor’s responsibility from personal statements to the statements of the people who work the case. The prosecutor must “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”¹⁶ The benchmark is the prosecutor’s own freedom to speak: whatever the prosecutor may not say publicly, the prosecutor must take reasonable care to keep associates from saying. Without the duty, the limit would be easy to evade. A detective who describes the defendant’s alleged confession to a camera reaches the same potential jurors as a prosecutor at a podium, and statements about a confession are among those Rule 3.6 treats as presumptively harmful.¹⁷ The benchmark also marks the duty’s outer edge. A public-safety warning that satisfies the exception is not a statement the prosecutor must prevent an associate from making.

Reasonable care measures effort, not results. A prosecutor can take every sensible step and still watch an associate speak out of turn, so the question is what the prosecutor did to prevent the statement, and the statement’s occurrence does not by itself prove a violation. What counts as reasonable care depends on the relationship between the prosecutor and the speaker.

For employees of the prosecutor’s office and others under its disciplinary supervision, the duty applies Rule 5.3, which directs managerial and supervisory lawyers to make reasonable efforts to ensure that nonlawyer assistants behave in a manner compatible with the lawyer’s professional obligations.¹⁸ A prosecutor who never explained the publicity limits to the office’s staff has skipped the most basic step.

For law enforcement personnel and other relevant individuals, Comment 6 to Rule 3.8 supplies the working standard: “[o]rdinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.”¹⁹ Reasonable care therefore ordinarily means cautions, and it does not promise silence. The cautions should do more than recite a rule. The prosecutor’s message should convey that the courts adopted these standards as important protections to ensure a fair, just, and honorable criminal justice system.²⁰

Hypothetical Illustration

Two county prosecutors announce charges in cases of the same kind. The first never raises publicity with the lead detective, and that evening the detective tells a reporter that the defendant confessed and describes what the defendant said. The second prosecutor meets with the detective and the other investigators before the announcement, explains the limits on public comment and why the courts impose them, and asks that press inquiries go to her office. Days later an officer from that investigation, acting without authorization, tells a reporter about the defendant’s alleged confession.

The first prosecutor made no effort to prevent a statement she could not have made herself, so she did not exercise reasonable care. The second gave clear cautions, so she exercised reasonable care even though one officer ignored them.

The detective’s remark is nearly identical in both scenes, so the duty turns on what the prosecutor did before anyone spoke. Two instincts mislead here. One treats the police as outside the rule because they are nonlawyers, when the rule reaches them through the prosecutor’s duty of care even though it cannot discipline them. The other treats every leak as proof of a violation, when the prosecutor is judged on the care taken and a leak that follows serious cautions leaves the duty satisfied.

Because investigators who are not lawyers are not subject to professional discipline for ignoring these limits, enforcement runs through the prosecutor. The officers’ conduct still carries a consequence: good-faith observance of the guidelines in Rules 3.6 and 3.8 by law enforcement, or the lack of it, presumably would be a factor for a court to consider when ruling on a defendant’s motion for a change of venue or for a mistrial because of prejudicial publicity.²¹ The prosecutor’s cautions therefore matter twice. They discharge the duty, and the guidelines they convey are the ones a court will look to in judging the officers’ good faith.

Other lawyers face the same concern through general rules. Rule 8.4(a) defines professional misconduct to include “knowingly assist[ing] or induc[ing] another to” violate the Rules, and Rule 5.3 directs a managing or supervising lawyer to make “reasonable efforts” to ensure that nonlawyer assistants uphold the lawyer’s professional obligations.²² Rule 3.8(f) states the duty directly for prosecutors.