Also known as: extrajudicial statement · extrajudicially · out-of-court statements
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
An out-of-court statement offered for its truth. Such statements trigger the Confrontation Clause when they are testimonial because the declarant must be unavailable and the defendant must have had a prior opportunity for cross-examination.
An out-of-court statement offered for its truth. Such statements trigger the Confrontation Clause when they are testimonial because the declarant must be unavailable and the defendant must have had a prior opportunity for cross-examination.
Select any source to read its text and confirm it supports the definition.
A statement made by a lawyer outside judicial proceedings. A lawyer participating in litigation must not make such a statement that the lawyer knows or reasonably should know will be publicly disseminated and will create a substantial likelihood of materially prejudicing an adjudicative proceeding.
Select any source to read its text and confirm it supports the definition.
A statement made by a lawyer outside judicial proceedings. A lawyer participating in litigation must not make such a statement that the lawyer knows or reasonably should know will be publicly disseminated and will create a substantial likelihood of materially prejudicing an adjudicative proceeding.
Each sense below has its own examples, sources, and questions.
After an assault, Esther Eisenberg gave police a detailed account naming the assailant. At trial the prosecution offered the recording to prove the assailant's identity. Because the statement was testimonial, the court excluded it when the declarant was unavailable and the defendant had never cross-examined her.
Elise Everly called 911 while her assailant was still inside the home. She described the attack in real time. The court admitted the statements because they were nontestimonial. Their primary purpose was to enable police to respond to an ongoing emergency rather than to create evidence for later prosecution.
Emmett Egan's codefendant gave police a statement admitting he alone committed the killing. The prosecution withheld the statement from Egan's counsel. After conviction the court ordered a new trial because the suppressed extrajudicial statement was material to guilt or punishment.
A statement is testimonial when made under circumstances that would lead an objective witness to reasonably believe it would be available for use at a later trial. Formalized materials such as affidavits, depositions, and custodial examinations fall within this class.
Supporting sources
No. Such statements are admissible against coconspirators as vicarious opposing-party statements. The prosecution need not show the declarant's unavailability.
Supporting sources
Evelyn Ellison, counsel for the defendant in a high-profile fraud case, told reporters that the government's star witness had fabricated documents. The statement was widely broadcast. The disciplinary board found a violation because Ellison knew or should have known the remarks would reach the jury pool and materially prejudice the trial.
Elijah Edwards, representing a public official, held a press conference and described the charges as politically motivated without further detail. The court later found the disciplinary rule unconstitutionally vague as applied because the safe-harbor language failed to give fair notice of what elaboration was prohibited.
Esme Ellington, a reporter, refused to reveal the source of a story describing a prosecutor's extrajudicial comments about an ongoing grand-jury investigation. The court held that the First Amendment did not shield the reporter from appearing before the grand jury to answer questions about the source of those statements.
No. The rule bars only those extrajudicial statements that the lawyer knows or reasonably should know will be disseminated publicly and will create a substantial likelihood of materially prejudicing the proceeding. Certain limited categories of information, such as the claim or defense involved, may be stated without violation.
Supporting sources
No. Rule 3.8(f) requires a prosecutor to refrain from such statements except when necessary to inform the public of the nature and extent of official action and to serve a legitimate law enforcement purpose. The prosecutor must also take reasonable care to prevent associated personnel from making prohibited statements.
Supporting sources
…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…