Also known as: out of court · extrajudicial
Written by attorneys · grounded in primary & secondary sources — see below
An adjective describing actions, statements, or activities occurring outside formal judicial proceedings. Such conduct or declarations take place beyond the courtroom setting and are not made under oath or as part of an official hearing or trial.
Judge Harlan accepts an invitation to speak at a bar association dinner about recent sentencing trends. The judicial conduct commission later reviews whether the appearance interfered with Harlan's primary obligation to handle pending cases on the docket. The commission finds that the out-of-court speech did not violate the precedence rule because Harlan had already cleared the calendar and the remarks stayed general.
Prosecutors seek to introduce a video of witness Dana describing Leo's thefts during a stationhouse interview. Dana later invokes the Fifth Amendment and refuses to appear at trial. Leo objects that the recorded statement is testimonial and that he never had any chance to question Dana about the accusations.
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Defense counsel Martinez holds a televised press conference two weeks before trial and states that the plaintiff fabricated evidence of product defects. The opposing party moves for sanctions, arguing that the statements were reasonably likely to taint the jury pool. The court finds that the lawyer's out-of-court remarks created a substantial risk of material prejudice.
Judge Rivera joins the board of a local nonprofit that lobbies for criminal-justice reform. A litigant in a pending case before Rivera moves to disqualify the judge, claiming the board work creates an appearance of partiality. The judicial ethics panel examines whether the extrajudicial activity will lead to frequent recusal requests.
After a high-profile indictment, lawyer Ellis tells reporters that the charges against the client are politically motivated. Disciplinary authorities later charge Ellis with violating the trial-publicity rule. Ellis defends on First Amendment grounds, arguing that the vague safe-harbor language fails to give fair notice of prohibited speech.
State prosecutors introduce a recorded statement Malloy gave to police while in custody on a related matter. Malloy argues that the statement was obtained through compulsion and that the Fifth Amendment privilege applies to the states. The Court considers whether the out-of-court admission can be used against him without violating the privilege against self-incrimination.
The Clause bars admission of testimonial hearsay against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. Testimonial statements include formal police interrogations conducted for use in a future prosecution.
A judge may engage in extrajudicial activities unless they interfere with judicial duties or will lead to frequent disqualification. The judge must also avoid any activity that undermines public confidence in impartiality.
A lawyer participating in a matter may not make an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and will create a substantial likelihood of materially prejudicing the proceeding.
A trial-publicity rule prohibiting statements with a substantial likelihood of material prejudice is permissible, but enforcement may violate the First Amendment if the rule is unconstitutionally vague.
…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,…