Also known as: extrajudicial statements · extra-judicial statement · out-of-court statement
Written by attorneys · grounded in primary & secondary sources — see below
An utterance made outside of court. It is usually treated as hearsay under the rules of evidence when offered to prove the truth of the matter asserted.
Edward Everett, counsel for the defendant in a pending fraud trial, held a televised press conference describing the prosecution's key witness as a known perjurer. The statements were widely reported. The court later sanctioned Everett under the professional conduct rules because the comments created a substantial likelihood of prejudicing the jury pool.
Eduardo Enriquez was charged with assault after police questioned his roommate at the station. The roommate described the fight in detail during the interview. At trial the prosecution offered the transcript, and Enriquez objected that the extrajudicial account violated confrontation rights because it was testimonial.
Select any source to read its text and confirm it supports the definition.
Emanuel Escobar, a journalist, received a subpoena to reveal sources who had described a public official's alleged bribery. Escobar refused, arguing the First Amendment protected the extrajudicial information. The court enforced the subpoena, holding that reporters enjoy no special exemption from appearing before a grand jury.
Emma Erickson called 911 during an ongoing domestic assault and described her attacker's actions in real time. At trial the prosecution introduced the recording. The court admitted it over confrontation objection because the primary purpose was to resolve an emergency rather than to create evidence for later prosecution.
Erika Echevarria was prosecuted for drug possession. The state introduced a forensic report identifying the substance without calling the analyst who prepared it. Defense counsel objected that the extrajudicial report was testimonial and violated confrontation guarantees.
Edgar Evers and a codefendant were tried separately for murder. Evers's counsel requested all codefendant statements before trial. The prosecution produced several but withheld one in which the codefendant admitted firing the fatal shot. After conviction Evers obtained a new trial because the suppressed extrajudicial statement was exculpatory.
An extrajudicial statement is hearsay if it is made outside the current trial or hearing and is offered to prove the truth of the matter asserted. The definition requires both an out-of-court utterance and a truth purpose. Statements offered only to show their effect on the listener or the declarant's state of mind fall outside the hearsay rule.
The Confrontation Clause applies only to testimonial extrajudicial statements. Testimonial statements include formalized materials such as affidavits, custodial examinations, and prior testimony that a declarant would reasonably expect to be used prosecutorially. Nontestimonial statements, such as those made during an ongoing emergency, do not trigger confrontation protections.
A lawyer participating in litigation may not make 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. Safe-harbor provisions permit statements about the claim or offense involved and information in the public record. Prosecutors must also prevent others assisting in the case from making prohibited statements.
…or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," Brief for Petitioner 23; "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," White v. Illinois , 502 U. S. 346, 365 (1992) (Thomas, J., joined by…